The female claimant, Ms Prewett, managed a pub owned by the
respondent, Green King Services Limited. After the pub failed a food
hygiene audit, two male managers, Mr Bentley and Mr Gaunt, visited the
pub to discuss remedial measures.
During this meeting, Mr Bentley
and Mr Gaunt shared a joke, using a word which was a slang term both for
a kind of food, but also for a part of the female anatomy. The Claimant
was not aware of the definitions at the time, but was later informed by
a colleague and by her daughter, who googled the term.
also visited the pub again and when asked by Ms Prewett “What do you
want to see first?” he responded “Depends what’s on offer” and he then
touched Ms Prewett’s shoulder.
A month later,
another manager visited the pub and when he mentioned Mr Bentley, Ms
Prewett became upset. She then called Mr Gaunt and notified him of her
intention to resign due to sexual harassment by Mr Bentley. She also
raised a formal grievance, but both the grievance and her subsequent
appeal were rejected.
Ms Prewett then issued a claim for sexual
harassment and unfair dismissal. The ET disagreed with the conclusion of
the respondent’s investigations into the grievance and decided that Ms
Prewett had been sexually harassed and awarded her £5,000.
case demonstrates how one-off inappropriate comments may meet the
definition of sexual harassment under the Equality Act 2010, even if
there is no intention to offend and even if the victim does not voice
their objection to the behaviour straight away. Although the ET accepted
that Mr Bentley’s comments were intended as humour, the comments
“violated the claimant’s dignity” and “created a hostile work
environment” for her.
Does a claimant in the employment tribunal have the right to have a judgment withheld from the public domain?
Not as a matter of course, concluded the Court of Appeal (CA) in L v Q Limited.
this case, the CA held that the Employment Tribunal (ET) is not
permitted to rely on Rule 50 of the Employment Tribunal Rules to order
that a judgment must not be published on the public register unless
exceptional circumstances require it. The CA was unwilling to speculate
on what those circumstances would look like.
The claimant had
brought claims of disability discrimination, harassment and
victimisation against his employer. The claimant's solicitors requested
that the final hearing take place in private, that the ET’s judgment be
anonymised and also that the judgment should not be placed on the public
register. The ET granted those applications.
Appeal Tribunal overturned the ET’s decisions regarding non-publication
of the judgment and also the ET’s decision to disguise the nature of the
claimant’s disabilities in the judgment, but it did accept the ET’s
decision that the parties be anonymised in the judgment.
On appeal, the CA, considering only the issue of publication and anonymisation, concluded:
there may be circumstances in which an ET judgment can be kept secret,
the CA found it hard to imagine the circumstances in which an ET could
properly withhold publication of a judgment altogether
claimant’s disabilities should not be disguised in the judgment because
their omission would “fundamentally undermine understanding of the [ET]
This case clarifies that non-publication of a
judgment is unlikely to be an avenue open to parties where a claim
proceeds to a final hearing. Although anonymisation of judgments may be
possible, transparency of judicial decisions is a central principle of
Can a claimant rely on ignorance when issuing an
Employment Tribunal claim of unfair dismissal outside the three month
It depends, according to the Employment Appeal Tribunal (EAT) in Inchcape Retail Limited v Shelton.
this case, the claimant, Mr Shelton, was summarily dismissed for gross
misconduct. Following an internal appeal hearing, his employer, Inchcape
Retail, decided to investigate further, during which time the standard
three-month time limit for bringing an Employment Tribunal claim of
unfair dismissal expired.
Under s111(2) of the Employment Rights
Act 1996, the Employment Tribunal (ET) may not consider a claim of
unfair dismissal unless the claim is either a) received by the ET within
three months of the effective date of termination or (b) if not
received within that initial three month period, it is received within
such further period as the ET considers reasonable, provided that the ET
is also satisfied that it was not reasonably practicable for the claim
to be lodged with the ET before the end of the initial three months.
awaiting the outcome of the internal appeal process, Mr Shelton
contacted ACAS and subsequently submitted his claim to the ET. The ET
found that in the circumstances Mr Shelton’s ignorance of the three
month time limit was reasonable and justifiable and his unfair dismissal
claim was allowed to proceed.
The employer appealed and the EAT
decided that in cases such as this, the ET was required to make
case-by-case findings of fact regarding what steps a claimant should
reasonably be expected to take to find out about the enforcement of his
rights. The EAT decided that the ET had not considered this question
sufficiently and so the appeal was allowed and the EAT sent the matter
back to the ET for a re-hearing.
Is the fact that a worker
reasonably believes that a disclosure is in the public interest enough
to entitle them to protection as a whistle-blower?
Yes, according to the Employment Appeal Tribunal (EAT) in Okwu v Rise Community Action.
Okwu worked for a small charity providing support for individuals
affected by domestic violence, female genital mutilation and HIV. Ms
Okwu’s three-month probation period was extended for a further three
months due to issues with her performance. Ms Okwu wrote to her employer
alleging that they were in breach of data protection law by failing to
have sufficient procedures in place for the handling of sensitive data.
Ms Okwu was subsequently dismissed on the grounds of unacceptable
conduct and unsatisfactory performance.
Ms Okwu claimed automatic
unfair dismissal, claiming that she had been dismissed for making a
qualifying disclosure protected by s43B of the Employment Rights Act
1996. Her claim was rejected by the Employment Tribunal (ET). The ET
decided that the disclosures Ms Okwu made were not in the public
interest and therefore did not provide her with whistle-blower
Ms Okwu appealed and the EAT decided that the ET had
been wrong in its approach and had failed to decide whether Ms Okwu had a
“reasonable belief” that her disclosures were in the public interest.
Although Ms. Okwu’s disclosures were made primarily because of the
assessment of her performance, it did not necessarily follow that she
did not reasonably believe that her disclosures were in the public
This case confirms that when determining whether a
disclosure is in the public interest for the purpose of being a
qualifying disclosure under section 43B Employment Rights Act 1996, it
is sufficient that the employee or worker has a reasonable belief that
it is in the public interest, even if in fact it is not and/or the
allegations are untrue.