Victimisation and Discrimination — Important Lessons for Employers

Victimisation has long been a strand of discrimination law. Its most recent incarnation is in the Equality Act 2010, which provides that it is unlawful for an employer to victimise an employee because the employee has carried out a "protected act", complaining, or supporting a complaint, of unlawful discrimination, whether by bringing proceedings or raising a grievance in the workplace, for example.

The recent employment tribunal case of Bouabdillah v Commerzbank AG has received a lot of press attention and provides an interesting example of the law in operation, where the victimisation related to a protected act carried out in a previous employment.

What happened?

In summary, Ms Bouabdillah (B) started working for Commerzbank on May 23, 2012. Previously, she had worked for Deutsche Bank (DB). B had lodged claims, including for sex discrimination and equal pay, against DB, before and after resigning from that employment.

Commerzbank interviewed B four times. She said that she had left DB because she wanted to work in a smaller team and have more responsibility and recognition; she had found DB very political; she had lost trust in the management and no longer wanted to work there; she was not being rewarded fairly; there was competition for positions and she did not like the aggressive atmosphere; and her team was unhappy. She did not mention her claims against DB.

Subsequently, Commerzbank offered B the role of head of product engineering at director level with Commerzbank. In the "Fitness and Propriety" section of the pre-employment application form, required by the Financial Services Authority (FSA), she was asked whether she had "ever been the subject of any civil proceedings, arbitration or litigation, including proceedings that may lead to a county court judgment or other judgment debts…". Her answer was "no".

Two weeks after starting work with Commerzbank, a pre-hearing review took place in respect of her claims against Deutsche Bank. That same evening Bloomberg published an article headed "Ex-Deutsche Bank worker claims sex bias over lower bonus", which mentioned that B was now employed by Commerzbank.

The next morning B asked to meet her manager to tell him about the Bloomberg article and her claims. During this, and subsequent meetings, she was told that, because she had not disclosed this matter to Commerzbank at the outset, there was a question mark over her honesty, and it was not clear that she could be trusted.

B explained that she thought that she was entitled to keep that information to herself as it was personal and not relevant to the professional aspects of her job. She had not anticipated the press interest, which was why she had not notified Commerzbank of the pre-hearing review.

The issue was escalated up the management chain. During this process a file note was made noting that B had not disclosed her claim against Deutsche Bank because of her fear of being discriminated against in her application for employment. Shortly after, Commerzbank dismissed B due to a breakdown of trust, because she had withheld material information. B lodged claims against Commerzbank in the employment tribunal. Her claim for unlawful victimisation succeeded.

The outcome

The employment tribunal found that the reason for B's dismissal was that she had brought tribunal proceedings against DB and not that she had failed to disclose those proceedings, as Commerzbank had argued. The tribunal expressly found that B had not misled Commerzbank at any stage. She had given direct answers to direct questions and while her answers may not have been entirely full answers this did not make them misleading or dishonest.

In the tribunal's view, Commerzbank had not been exposed to unmanageable PR issues and reputational damage. The Bloomberg article only mentioned Commerzbank in passing, with no negative association whatsoever and there was no evidence that the PR team had even been contacted about the matter. The only explanation for Commerzbank's concern was the fact that its name was linked to an article headed "sex bias".

There was nothing wrong with the way B had answered the question on the application form. The question clearly related to her fit and proper classification for FSA purposes and the fact that she had brought proceedings against her former employer to enforce her employment rights was not relevant to that issue.

Finally, B's failure to disclose the proceedings did not undermine the relationship with her manager. It had been reasonable for B to take the view that the litigation was a private matter which would not affect her employment. The tribunal also rejected Commerzbank's argument that its perception and genuinely held view was that there was a lack of trust and confidence between the parties. Commerzbank had succumbed to a knee-jerk reaction when the information came to light and did not properly analyse the issue of whether it was right to conclude that trust and confidence really had broken down. The decision was emotionally driven and not objective.

The tribunal concluded that it was the fact that B had made claims of unlawful discrimination against DB that had exercised it, and not that B might be just a "troublemaker". It drew inferences from the fact that Commerzbank's employee handbook did not correctly explain the concept of sex discrimination, that none of Commerzbank's witnesses seemed to understand the concept of discrimination, and also from Commerzbank's failure to answer a question in B's discrimination questionnaire about the number of discrimination and victimisation complaints and grievances brought against it in the last three years. The case has been listed for a remedies hearing in September and it is reported that B is seeking £13 million in compensation.

What does this mean for employers?

First, this case needs to be considered on its facts. There appears to have been enough evidence with which to damn Commerzbank, and little, if any, evidence to support any claim that B had failed to properly discharge her own duties to Commerzbank.

The general principle, however, is important. The law is clear. Here, the tribunal was dismissive of Commerzbank's handbook, which, in its view, did not even properly reflect the law in this area. It also found that Commerzbank's witnesses appeared ignorant of their responsibilities at law, because they did not properly understand discrimination law. This illustrates how crucial it is for all employees at all levels — including high — to be given a proper grounding and training in the principles underlying dignity at work, including the right not to be victimised in relation to discrimination claims which may have arisen in a previous employment. That training needs to be constantly repeated to ensure that knowledge, where it already exists, is refreshed. It is striking that, in this case, the employment tribunal did not use its powers to make a recommendation that the handbook be redrafted and/or training be undertaken.

This does not mean that employers cannot ask questions of employees designed to help the employer determine whether or not the candidate is the right one for the job. Put simply, employers need to ask themselves: (a) is this question relevant to the employee's suitability for the role; and (b) if it is, then could it in any way be construed as discriminatory? If the answer to the second question is "yes", stop there, and go back to the drawing board.

The facts in this case, where the employee was victimised in relation to a previous employment, contrast with the current anomaly in the Equality Act, whereby it appears that an employee may not be able to bring a victimisation complaint where the complaint arises from the employer's actions after the employment has come to an end. There are conflicting EAT decisions on this issue and a Court of Appeal ruling in the case of Jessemey v Rowstock is expected later this year or early next. 

This article, written by Jessica Corsi, was originally written for Complinet and was published on http://accelus.thomsonreuters.com/ Thomson Reuters © 2013