At one extreme, more than 100 Stoke-on-Trent factory workers
were relieved to be awarded £3,000 for unfair dismissal by their failed
employer. At the other, a high flying City banker doubts her multi-million
pound award was worth the fight. For both, legal representation was key. Yet
the banker said most of her £3.2m total award would be swallowed up by fees and
the taxman.These two cases, amongst many others we look at below, highlight the continuing need for businesses and individuals to insure themselves against possible legal problems and for all intermediaries to redouble their efforts to convince clients of the importance of Legal Expenses Insurance (LEI). Without continuous funding, well-founded claims can too easily be abandoned. Not so when legal expenses insurance is in place to pursue or defend actions, through to appeals if necessary.
Employment tribunals often yield rulings that are surprising
or complex, and it is this unpredictability that makes LEI so necessary: after
all, legal costs and application fees cannot be claimed from the opponent
though they are paid by the legal expenses insurer. Employment cases are by far
the most frequent form of dispute under family and commercial policies, while
ARAG legal helplines are constantly dealing with queries over the complexities
of relevant laws and regulations.
Not every claim is going to grab the headlines yet each is
important to those involved. Looking at some recent cases, there are some that
challenge even the most avid tribunal watchers' opinions on likely outcomes.
For a start, the 110 workers at failed copper manufacturer Thomas Bolton were
made redundant but were actually unfairly dismissed.
And that £3.2m award. It took three years to conclude and had
adverse health effects on Svetlana Lokhova. She was set to earn £750,000 a year
at the equity sales desk of Sherbank in London's Fleet Street. However, after
six months in a 'toxic atmosphere', being subjected to a vicious campaign of
sexual harassment by bullying male colleagues, she was put on sick leave and
forced to leave her job. While her direct boss – who had called her such names
as 'Crazy Miss Cokehead', 'Miss Bonkers' and 'schizo nightmare' – had a brief
5-minute hearing before being paid off £168,000 by the Russian bank, Ms Lokhova
endured a protracted legal battle to secure £44,000 for hurt feelings and
£15,000 in aggravated damages for falsely accusing her of being a drug user and
£3.14 million for lost wages.
Now some more divisive issues:
Freedom of religious expression
Was it right to sack an employee who told a colleague that
her lesbianism 'was a sin'? Not according to a tribunal. It was the colleague
that approached the Christian nursery worker for her opinion; the employer most
likely dismissed her for 'stereotypical assumptions about her and her beliefs'.
Sarah Mbuyi was dismissed by Newpark Childcare in Shepherds
Bush, west London, for gross misconduct but claimed the sacking breached
European law on religious discrimination.
The tribunal recognised that the employer was not
anti-Christian but described the complainant's belief as one that is 'worthy of
respect in a democratic society, is not incompatible with human dignity and is
not in conflict with the fundamental rights of others'. There was little or no
evidence that Mbuyi targeted her colleague in an effort to force her faith on
her.
Hate-campaign vicar had no employment rights
Faith workers such as vicars cannot be heard at tribunals
because they are 'religious office holders', not employees, under Church of
England ecclesiastical law. A four-year campaign seeking a landmark decision
was finally dismissed in the court of appeal after tribunals were split over
whether the Rev Mark Sharpe might legally be categorised as an employee or a
worker.
The vicar said he faced a continuing campaign of intimidation
which included his dog being poisoned, phone lines cut and his car vandalised.
He argued that the church should have warned him of problems in the parish
before offering him the job and insisted he should have the legal right to
bring a case for constructive unfair dismissal. Three appeal judges ruled that
he was 'neither a party to a contract of employment, nor a worker' and
therefore not entitled to bring a case.
Amnesia over criminal conviction costs woman a job
A woman who apparently 'forgot' her criminal conviction
failed in her attempt to become a police officer. Having been a police
community support officer, Rachida Sobhi applied to become a constable,
declaring she had no criminal record. Checks showed she had been convicted for
theft and the Metropolitan Police refused her a job because she failed to own
up. She then said her amnesia was a disability and that the Met discriminated
against her by not taking it into account. Having withdrawn her latest tribunal
appeal, Ms Sobhi has now admitted defeat.
Too glam for football
When salacious rumours circulated that the highly successful
sales and events manager at Port Vale football club was having an affair with
the club's star striker, Marc Richards, she was summarily sacked, even though
the allegations were untrue. Richards escaped censure despite the fact it was
he who pursued Joanne Clay and he who ignored her rebuffs. When Ms Clay
complained about the approaches to club CEO Perry Deakin, he allegedly told her
that she was 'too attractive to work in football'. An employment tribunal found
that the failure to investigate Richards was 'striking' and the club's ban on
relationships between employees and footballers was 'slanted against women'.
However, the club and its battery of lawyers did not back down until the appeal
court upheld the tribunal decision. An undisclosed settlement was reached.
Bank manager assaults girlfriend then claims sexual
discrimination
He was drunk at the Christmas party, danced provocatively
with a female colleague, and later alledgedly seriously assaulted his regular
girlfriend – another colleague. Yet he claimed sexual discrimination when he
was sacked for his behaviour. David Haughton was manager of Lloyds bank in
Lymington, Hampshire. He admitted he drank 'far too much' but argued that a
woman who carried out the same attack on a man would not have been sacked. The
tribunal threw out his case.
Positive drugs test didn't tell the whole story
A Bristol bus driver failed a drugs test but won £84,000 for
unfair dismissal at a tribunal. A saliva test picked up traces of cocaine and
he was immediately dismissed for gross misconduct. Alan Bailes had worked for
First Bus for 22 years and protested he had never taken cocaine and that it
must have been detected from handling hundreds of customers' banknotes on the
same day. To demonstrate his innocence, Mr Bailes paid for an independent hair
follicle test that showed he had not taken cocaine in the previous 90 days. The
tribunal was critical of the former employer's failure to investigate his
explanation and was 'wholly uninterested in exploring that sensitive but important
issue'. It has been estimated that one in ten banknotes contains traces of
cocaine.
One theme that runs through many cases is failure of the
employer to thoroughly investigate the circumstances before taking action, or
to act when advised of a problem. Referring the matter to legal advisers may
have averted the need for a tribunal to decide the rights and wrongs of a case.
