Employment Law Case Update: Constructive Dismissal and Sexual Orientation Discrimination

Discrimination is a hot topic at the moment and a recent case has highlighted how a change in behaviour towards an employee could lead to tribunal.  Our Employment Law team review the case of Allen v Paradigm Precision Burnley Limited and Carl Wheeler and advise employers how they can manage their employees and processes to avoid a similar situation.

Peter Allen was a successful senior employee of Paradigm Precision, an aerospace engineering business. In 2017 he was considered as a potential successor to Carl Wheeler as General Manager.

At this point only a small circle of friends were aware of Mr Allen was gay; in fact, he took steps to hide it, telling colleagues he was married to a woman called Karen. A good female friend was willing to play the role of Karen if required. The pretence was convincing enough that some colleagues even addressed Christmas cards to Mr Allen and Karen.

In 2017, Mr Allen informed the HR Director, Ms Wright, that he was gay and that he and his husband had plans to adopt. 

On 12 March 2018, in a meeting alongside Ms Wright, the GM, Mr Wheeler, told Mr Allen he planned to retire in a year and had chosen him as a potential successor. They discussed a potential succession plan. After this meeting, Mr Allen told Mr Wheeler that he was in a same sex marriage and had future plans to take adoption leave. Mr Wheeler responded to this disclosure saying that it was obvious Mr Allen was gay as he was “quite camp.”

After this, Mr Allen told the Employment Tribunal, there was a change in attitude towards him. He received an email from Mr Wheeler with a picture depicting two “stereotypical gay men”. Mr Wheeler made other comments and gestures regarding Mr Allen’s sexuality. At a work event on 20 April, Mr Allen was subjected to numerous questions from colleagues about his personal life and sexuality. Mr Allen said he felt ‘outed’ by “Carl’s inappropriate remarks”.

On 5 June, it was announced at a management meeting that Mr Wheeler was retiring and that two external candidates had been identified as potential replacements. On 8 June Mr Allen metwith Ms Wright and Mr Wheeler to ask why things had changed for him regarding the GM position. He was told that the company was also considering internal candidates and that he could apply for the position if he wished. The ET found that this showed a marked change of position from a few months earlier, when Mr Allen was the favoured successor.

Mr Allen decided that applying for the GM position would be pointless - an assumption the ET found was reasonable, considering the change in attitude towards him. He began a formal grievance process on 22 August 2018. The ET found the grievance process was inadequate. It took too long, and had insufficient input from Mr Allen. Mr Allen resigned in November 2018.

The ET found that Mr Allen was a victim of harassment, conducted by the employer and in particular Mr Wheeler, relating to his sexual orientation and violating his dignity.

It found that on the balance of probabilities, Mr Allen was rejected as a candidate for GM because he informed Paradigm that he intended to take adoption leave and be the primary carer. Alternatively, the ET then also stated that if the reason was not his decision to take adoption leave, then the disclosure that he was gay was the “effective cause of less favourable treatment”.

The ET found that harassment, detrimental treatment, and inadequate grievance process all amounted to repudiatory breaches of contract. It therefore concluded Mr Allen was unfairly constructively dismissed, awarding him £174,645 of which £26,300 was for injury to feelings.

The case shows how employers must be careful that treatment of an employee doesn’t change after a disclosure relating to a protected characteristic - and that grievances alleging harassment or discrimination should be thoroughly heard and investigated.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.