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Can you dismiss an employee for suing their ex-employer?

An Employment Tribunal has decided that an employee was victimised by her new employer because it dismissed her after finding out she had brought discrimination proceedings against her ex-employer.

Background

Under the Equality Act 2010, employees are protected from being victimised, if, for example, they have brought a discrimination claim against their employer.

Facts

The Claimant, Ms Bouabdillah, worked for Deutsche Bank. She brought discrimination claims against Deutsche Bank and resigned from their employment.

The Claimant obtained a new job with Commerzbank. During the interview and assessment process Commerzbank asked the Claimant why she left Deutsche Bank. The Claimant gave a number of reasons including that she wanted to work in a smaller team, had lost trust in management, was not being rewarded fairly and that her team was unhappy. The Claimant did not mention that she had brought discrimination proceedings against her ex-employer.

After the Claimant commenced employment with Commerzbank, her Tribunal proceedings against Deutsche Bank became public knowledge because of press interest in the matter.

Commerzbank dismissed the Claimant from employment because, in its view, she was selective with the truth, was dishonest, could not be trusted, should have disclosed the existence of the Tribunal proceedings so that the bank could make an informed decision about hiring her and had therefore caused a breakdown in trust between the parties.

The Claimant brought a victimisation claim against Commerzbank. She argued that she was victimised because she had brought a discrimination claim against her ex-employer.

Decision

The Tribunal agreed with the Claimant.

The Tribunal decided that the Claimant had suffered victimisation because she had brought Tribunal proceedings against her ex-employer and not, as Commerzbank had argued, because she had failed to disclose the existence of the proceedings. The Tribunal reached its decision on a number of grounds including that:

  • while the Claimant did not give entirely full answers to Commerzbank’s questions, she had not misled the bank or acted dishonestly;

  • the press interest in the matter would not have caused reputational damage to Commerzbank since the press article did not mention Commerzbank in a negative way;

  • the litigation was a private matter and did not affect her employment with Commerzbank.

The Tribunal concluded that Commerzbank had reacted in a “knee-jerk” way when the information about the proceedings came to light. Commerzbank did not analyse sufficiently whether it was right to conclude that there had been a breakdown in trust and confidence between the parties and had relied on an “emotionally driven” response to the matter rather than considering the matter in an analytical way.

Comment

The case serves as a reminder to employers that employees are protected for bringing or assisting others with claims under the Equality Act 2010. This protection is not only limited to events that occur during an employee’s current employment but can also include events that relate to an employee’s previous employment too.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2013. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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