I was shocked not by the circumstances of the case but by the way it was handled. The errors the company made were so basic that you would have to question the level of HR training and knowledge of those involved in the case.
In a nutshell, a Muslim female member of staff chose to wear a headscarf when she previously had not. The employment tribunal decided that the company did not like the fact that she wore this scarf and so moved her to a less high-profile post – then, when she took an extended lunch break the employer used this as a reason to ask her to resign or be sacked.
The employee claimed direct discrimination on religious grounds but the tribunal didn't accept this. Instead, it ruled that the woman had been treated unfairly regarding her lunch break – because it could not legitimately be regarded as gross misconduct – and that by threatening to sack her if she did not resign took away her free will and went against established procedures for dismissal.
Interestingly, the claimant lost her original case because she chose the religious angle and would have won her case if she'd claimed indirect discrimination. Indeed, she was deemed to have been at fault by taking the unauthorised lunch break and this was taken into account when working out the compensation. However, the company got fined 25% more than it would have because it had not followed the Acas code of practice on disciplinary and grievance procedures.
The religious element of this case is a red herring, which is how the tribunal chose to see it. Rather, the main issue here is that the employer – a 'trendy' shop in central London – appeared to decide that a member of staff didn't fit in with the company image and so she had to go.
The employee was told that the company was "trying to maintain an image" so the tribunal ruled that this was the real reason that she wasn't able to work in the high-profile store and was moved elsewhere. The total award to the claimant came to just over £3,000 but it isn't the financial aspect that is important here – the cost to the company's status and reputation will be much higher because this case was covered by most of the national press.
It should go without saying that employers need to have robust equal opportunities policies in place and be seen to implement them. And they need to be absolutely sure that they follow all recognised and legal procedures when it comes to disciplining staff.
But, sadly, this isn't always the case and too many companies continue to risk hefty awards and bad publicity by attempting to sidestep their legal obligations – or being perceived to have done so.
Of course, many mistakes are accidental and made through genuine misunderstandings but lack of knowledge is no excuse and manoeuvring someone into a position where they feel obliged to leave the company is equally inexcusable. Nobody should feel that they are being forced out of their job.
The tribunal said that the company directors had already decided to dismiss the claimant by one means or another because of the headscarf. As a consequence, she had been given a clear indication that she had no future with the company. This is not an accidental mistake. But it is one that they have paid dearly for, certainly in terms of damage to their reputation if not their bottom line.
It is virtually inevitable that an employment tribunal will see behind any trumped up claims or any stories that do not stack up. They will scrutinise the facts of the case, make judgements about the employer and the claimant, see what has been going on and work it out.
So not only is making up reasons to discipline employees something that should be avoided at all costs but compounding this by trying to pull the wool over the eyes of a tribunal is most definitely not a wise move.
The rules are simple – be fair and be seen to be fair and this will go a long way to putting you in a good light if you are ever brought in front of an employment tribunal. Besides which, employees will always work harder for companies that have a reputation for being fair.
Michael Slade (pictured) is managing director of employment consultancy Bibby Consulting & Support
