Taking a Tumble: a Double Slip Up in the Tribunal

One eye catching case report in the Telegraph last month proclaimed that “laughing at someone when they fall over at work is not harassment”. 

 

The employment judge who heard the case of Perera v Stonegate Pub Company observed that “slapstick incidents may prompt laughter” when dismissing Mr Perera’s claim for racial harassment, partly by reference to an incident where Mr Perera did indeed fall over in the workplace kitchen. The claim that his manager had put oil on the floor deliberately to cause his fall was dismissed as “ridiculous”, and it was stated for the record that the resultant laughter, a comment about the need for him to wear proper shoes, and the apparent absence of a clean uniform in Mr Perera’s size had nothing to do whatsoever with his race or religion. 

 

Many similar claims from other days at work having been rejected, his claims of harassment related to race and religion were dismissed. 

 

Was the newspaper headline simply a reminder of Sybil Fawlty’s specialist Mastermind subject? In isolation, maybe. But Mr Perera still walked out of the tribunal richer, to the tune of £2,371.02. 

 

How come? What had the employer done wrong? What lessons would it, or should it, have learned? 

 

Of the award, £1,462.11 comprised underpayments of wages between 19 January and 10 July 2020. The remaining £908.91 was an award for failure to provide written particulars of employment. 

 

For some wider context, Mr Perera started in employment on 17 January 2020 and was dismissed on 20 October 2020. He submitted his tribunal claim six weeks earlier, on 8 September 2020. The trial started on 5 December 2022 and ran for four days, with judgment being reserved and published on 24 February 2023. The company was represented by a barrister. The document bundle was 471 pages long, supplemented by witness statements. 

 

Mr Perera represented himself at the tribunal. The wages records – or lack of them – may have called for prolonged study. There may have been principles at stake. But the amount in dispute, compared to the time and cost of determining it, would at first sight appear to have cried out for a keener eye for the economics. 

 

As to the missing written particulars, the culpability for failure to provide them is long established. 

 

What could timely legal advice have achieved here? No employer can be rendered bomb proof when determined litigants in person are involved. But they would appreciate knowing about the need to issue written particulars; the risk of being held in the wrong when it came to a charge of not paying full wages; and whether it is cost effective to let a dispute of this kind go all the way to a prolonged tribunal trial without a single concession, rather than focusing on the issues that can and should be politely but firmly defended. 

 

There is a time and a place for asserting “I’m having my day in court”. But there is arguably more of a time and place for asking “how will I get the best net return – or the least bad outcome?” 

 

What can we do for you? We can advise you on the latter. And indeed on how to avoid being faced with that depressing choice in the first place. 

 

Employment problems ahead? Looking to nip them in the bud? Get in touch with David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .