Employment Law Case Update: Witness Evidence and Discrimination

If you or your employees are required to provide witness evidence in a tribunal claim, it is also important that they are willing to appear in tribunal.  This was highlighted in the recent case of T Bond v J Large t/a Lads and Dads Barbers which shows why turning up is usually an employer’s best option.

Ms Bond worked at Lads and Dads from August 2016 until her dismissal in July 2018.  At tribunal she alleged discriminatory treatment from the salon owner, Mrs Joanne Large, and her daughter, Ms Leanne Large.

From February 2017 Ms Bond was on long term sickness leave for depression and anxiety. Ms Bond claimed Miss Leanne Large accused her of “lying about the reason she was unwell” and filmed Ms Bond on several occasions when she walked by the salon. Ms Bond was dismissed and not paid accrued holiday pay due to her.

In Employment Tribunal (ET), Ms Bond said after telling colleagues she was Muslim, her duties were altered. She was asked to take out rubbish and clean up dog excrement from the car park. She also claimed she received shorter notice for her shifts.

Further, she alleged Miss Leanne Large “exaggerated or misstated the content of an anonymous letter” containing allegations of sexual impropriety with a minor. Miss Leanne Large implied that Ms Bond was identified in the letter, although the ET found it could have been referring to another member of staff. 

The ET heard from a salon customer who stated that Miss Leanne Large told him she “had recently learned that [Ms Bond] was a Muslim and that ‘she couldn’t have that’ and that Ms Bond ‘had been flirting with younger customers.’”.

Miss Leanne Large did not appear to give evidence; nor did she provide a written statement. Mrs Joanne Large told the ET that as the named respondent, she believed herself to be the person accused of breaching the Equality Act and the only pertinent witness. However, Mrs Joanne Large had little knowledge of the interactions between Ms Bond and Miss Leanne Large. The ET therefore heard very little evidence to contradict Ms Bond’s claims.

The ET found on the balance of probabilities that Miss Leanne Large was aware of Ms Bond’s religion, and that directions to take out rubbish and clean up dog excrement amounted to less favourable treatment. It therefore found that in the “absence any contrary evidence” those directions “were acts of direct discrimination on the grounds of perceived religion.”

Regarding the letter, the ET read WhatsApp messages in which Miss Leanne Large denied she misled Ms Bond, but as she was not present to confirm the accuracy of these statements, the ET could only accept Ms Bond’s assertion that Miss Leanne Large had exaggerated the contents of the letter.  The ET found that this too amounted to direct discrimination on the grounds of perceived religion.

The ET further concluded Miss Leanne Large was aware of Ms Bond’s disability and “treated the claimant unfavourably by video recording [Ms Bond] on two occasions during her sickness absence, contrary to section 15 of the Equality Act 2010.” Again, this decision was reached in the absence of any contradictory evidence from Miss Leanne Large.

The ET awarded Ms Bond £999.60 for unlawful deduction of wages, £356.76 for her employer’s failure to provide principle terms and conditions of employment, and £19,352 for “injury to feelings and interest.”

This case demonstrates how crucial witness evidence can be for employers facing a discrimination claim. Employers should ensure all parties involved are available to provide evidence, especially if their version of events differs from that of the aggrieved employee.

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.