Relying on historic information in recruitment, was victimisation

A homelessness charity has had an Employment Tribunal claim brought against them for victimising a former staff member after refusing to give her work because of an abandoned bullying investigation and an equal pay claim, which dated back 15 years.

 

The Tribunal found that the claimant, who worked as a freelance welfare rights coordinator, was victimised after she was refused work as a locum because of allegations made against her and then dropped in 2004.

 

In 2004, the claimant resigned due to having to relocate and during her notice period, was called to a meeting to respond to bullying allegations that had been made against her by her manager. She was told there had already been a preliminary investigation of the allegations, but the decision had been not to proceed with the formal investigation.

 

The Claimant stated that she was surprised that the allegations were “simultaneously raised and closed, without having had the opportunity to answer the allegations”. During the employment tribunal, she explained that she was concerned that the allegations were “left in the air without being solved” and that this might cause difficulties for her as she intended to continue working in the same sector. However, the tribunal heard no subsequent action was taken against her.

 

Shortly after leaving her position in 2004, the Claimant discovered that a male colleague had been paid more than she had for work that she considered to be of equal value. She lodged tribunal proceedings at that time, but ultimately elected not to continue with the claim.

 

In 2017, the Claimant returned to work with the charity as a freelance consultant. She successfully applied to be part of the charity’s bank of locum workers in 2018 and was also told she could be considered for management roles in the future. The request was put to the executive director of HR and governance (who had worked for the charity in 2004), who told the tribunal that she immediately recalled the bullying allegations against the Claimant because “they had been so extreme”.

 

The tribunal concluded that it was likely that the HR director had a discussion about the Claimant’s employment with the chief executive and that following this discussion, the Claimant received an email on withdrawing the offer of locum work with the reason that “information has subsequently come to light surrounding your previous employment”. Having sought clarification the Claimant then received the following explanation: “We do not offer employment or work via our locum bank to any ex-employee of the organisation or any predecessor organisation either where they were previously subject to a disciplinary action or they resigned from/left the organisation at a time when a disciplinary investigation was underway.”

 

On receipt of this email, the Claimant brought claims of victimisation to the tribunal, which ruled in her favour. In his judgment, the Judge rejected the charity’s explanation that the decision was taken because of the “vivid recollection of serious and credible, historic bullying allegations against the claimant” and concluded that it was likely the decision was made by both the HR director and the CEO and that it was “equally likely” that the Claimant’s earlier equal pay proceedings “formed at least part of the reason for revoking the offer”. The tribunal orderedthe charity to pay £17,527, including £12,000 for injury to feelings and £4,007 for loss of earnings, plus interest on both amounts.

 

Trying to rely on previous accusations of gross misconduct in employment decisions, without first conducting a fair disciplinary procedure was not regarded as a reasonable explanation by a tribunal. Had the employer conducted a correct procedure at the time, they may have been able to rely on its outcome in justifying their decision.

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