Winning isn't everything
Bottoms and breasts tribunal case leaves Claimant with a pyrrhic victory and little compensation.
Winning isn’t everything
An employment tribunal case which has recently been reported in the press1, no doubt because it involved breasts and bottoms, has shown that even when claimants win they don’t always come away with a fat tribunal award against their ex employer.
In J Taylor v Grwp Llandrillo Menai, Mr Taylor made a number of claims for disability discrimination, unfair dismissal and breach of contract. The hearing lasted four days and there was a significant amount of evidence given by both sides.
The case centred around Mr Taylor’s dismissal from the college. He was already on a written warning, given in 2018, for harassment and inappropriate behaviour towards a learner by emphasising the word ‘cock’ in a female student’s name2 - not a good start!
Mr Taylor had been diagnosed with Type 1 diabetes which he claimed affected his eyesight and he had to wear contact lenses. On a particular day in 2018, a number of students complained that Mr Taylor had behaved inappropriately towards them by entering their “personal space” and staring at their tops and cleavage. They also said that they had seen him looking at their bottoms as they left the room for a break part way through the lesson.
They described how Mr Taylor set them work and then went around the class, appearing to look at their work but not marking it or commenting on it. They said he was looking down their tops instead of looking at their work. In his defence he claimed that it was due to the fact that he was wearing the wrong contact lenses and his poor eyesight caused him to stare.
There was considerable dispute between the Claimant and Respondent as to what actually happened on the day, but in the end the tribunal preferred the evidence of the College and agreed that he had in fact been staring inappropriately at the students. The tribunal also found that the behaviour was not related to his diabetes saying:
. . . the Tribunal finds it very difficult to understand any suggestion that the Claimant’s staring at the bottom of a learner as she was leaving the classroom (as the Tribunal has found occurred) can be in any way related to the Claimant’s disability. Further, the same is true of the Claimant staring at the breasts of the students. Once the Tribunal has concluded that the Claimant was not behaving in a way that has been misinterpreted by the students, the Tribunal comes to the conclusion that it is more likely than not that the Claimant was consciously staring at the students’ bodies and that it was not connected, in any way, to his disability or any issues arising from it.
But the tribunal held the Respondent failed to make a reasonable adjustment in respect of his disability by imposing a practice which put him at a disadvantage to non-disabled employees. This was a side issue in the scheme of things, but potentially could have been costly for the College.
He also claimed he was unfairly dismissed which the tribunal upheld as the investigation process was flawed and there was also a breach of contract claim in which he was partially successful. This concerned the timing of his notification of dismissal for gross misconduct and he was awarded two day’s pay.
However, as I said at the beginning - winning isn’t everything and it certainly wasn’t in this case. Misconduct is a potentially fair reason for dismissal. The College considered his behaviour towards the students amounted to gross misconduct and for that reason that they had good reason to dismiss. The tribunal agreed and unfortunately for Mr Taylor, that was the main thrust of his claim.
Compensation
When considering compensation, or ‘Remedy’ as it is referred to, the tribunal is entitled to consider whether the successful Claimant had contributed to his own demise. In this case he clearly had. Had it not been for his inappropriate behaviour none of the other issues would have come to light, so it could be argued he was the author of his own misfortune.
Tribunals have the power to reduce awards by a percentage amount for ‘contributory fault’ sometimes by as much as 100%. In this case the tribunal said:
The Tribunal has considered carefully the extent to which the Claimant should be held liable for the termination of his own employment in light of those matters and has concluded that the extent of the Claimant’s culpability justifies a reduction in the awards made to him (both basic and compensatory) of 90%.
Not an insignificant reduction. They also have the ability to consider what would have been the outcome had a fair process been followed and in this case it would undoubtedly have thrown up the same result.
So all in all it was a bad day for Mr Taylor as he only obtained a pyrrhic victory. But it is also a lesson many claimants should take onboard - but don’t.
If a Claimant has a case for unfair dismissal or any other claim and is relying on a technicality to succeed, particularly when they know they are complicit in their dismissal, they are unlikely to come away from the tribunal with nothing more than adverse publicity.
That being said, perhaps Mr Taylor was looking at a substantial award and 10% was still a worthwhile amount!
Employers should take note of this decision too. Only too often a claim is settled because due process isn’t followed and the dismissal is potentially unfair. Many believe they will be penalised and face huge payouts when in reality that is far from the norm.
See North Wales Live and the Daily Mail
The nature of theClaimant’s behaviour which led to the allegation can be gleaned from the warning letter which says, “The panel viewed the way you emphasised “cock” in a student’s surname as offensive and humiliating, this is a form of harassment and has had a negative impact on a student’s learning.”