We all have our pet hates when it comes to attention being drawn to Christmas before December is upon us. Gaudy decorations on neighbours’ houses. Irritating adverts for unappealing food and imported tat. “Stop The Cavalry” blaring in shopping centres. But what could have led to the newspaper headline “Woman sues employer for not letting her put up Christmas tree in November”, and what was the outcome?
Before Marilyn Maher resigned from her role as an administrator and co-ordinator at the University of Hertfordshire, her relationship with colleagues had deteriorated. She considered others to be disrespectful and rude; others considered her difficult. In making it clear that she was resigning to go to another job, she made no claim of constructive dismissal. Then came a grievance, and in turn a tribunal claim. She brought 13 allegations of direct race discrimination, and 20 of harassment related to race. Within the latter, an allegation that a senior manager, Jacqueline Roberts, “refused to allow her to erect the office Christmas tree on 21 November, and made negative comments in a corridor in a loud voice, causing her offence and to feel humiliated.”
Let us bring in the legal elements of harassment related to race. There has to be unwanted conduct. It must relate to a relevant protected characteristic. It must either have the purpose or effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.
On that date, Ms Maher had sent an email to Ms Roberts, asking for permission to set up the office Christmas trees. She received no response. She went ahead anyway and started to put them up. Ms Roberts told the tribunal that she then gave “a reasonable management instruction” that Ms Maher should not do so until December. She denied shouting or raising her voice.
For completeness, 11 days later Ms Roberts emailed Ms Maher and asked her to put the trees up. She ignored the email and told another manager that she was refusing to do so.
The tribunal found that the instruction on 21 November, comprising disagreement with Ms Maher’s view, was unwanted conduct. However, it was not related to race in any way. As such, there was no need to consider questions about dignity or environment.
A similar pattern of thought led to the tribunal rejecting all 20 claims of race based harassment, and all 13 allegations of direct race discrimination, which Ms Maher had based upon her belief that a person from a different ethnic background would have been treated more favourably (10 of the allegations were time barred in any event). The tribunal observed that minor incidents of daily office life had led Ms Maher to exaggerate and to become prone to embellishment. She had composed a staff notice about stationery usage that had included the line “kindly inform me of all suspicious activities”. She had “projected racist and stereotypical views” onto one of her managers about the type of food being brought into the office. The hearing took up nine days of tribunal time.
Is there anything that an employer can do when faced with a determined claimant pursuing a claim of this nature and in such a manner? Indeed there is. It could always send a costs warning letter, as soon as witness statements had been exchanged or indeed earlier. Although it is still very much the exception for employment tribunals to award costs against unsuccessful claimants, there is scope to do so when the claim is demonstrably vexatious and an abuse of process. On this occasion, the University could have politely but firmly observed that Ms Maher was unreasonably viewing every one of the 33 allegations about incidents in the ordinary course of office life through the prism of race, and that this was so unreasonable that it triggered the costs warning test. Maybe it did send such a letter.
This is where external legal advice at an early stage will usually be worthwhile. Admirable as it may be to set out the grounds for resisting the claim in a robust manner, a well timed costs warning may help take that robustness one valuable step further.
Are you facing a difficult claim from a determined claimant? Looking for a way to make the claimant see sense? Get in touch. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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