· News

"Non-feminist" employee loses tribunal for discrimination

Non-feminist views could be viewed as potentially discriminatory, Clarion's head of employment noted

A Environmental Agency employee who described himself as a “non feminist” has lost his tribunal claim for discrimination, victimisation and unfair dismissal.

Kevin Legge claimed that he was dismissed, in June 2021, due to resisting his female boss’ agenda to promote women rather than men. 

The tribunal ruled that Legge was “the author of his own downfall” with regard to his dismissal, as he had moonlighted as a counsellor while working for them full-time.

It found that, while it was clear Legge held non-feminist beliefs, they were not protected under the Equality Act 2010 as they were “not worthy of respect, or compatible with human dignity” and were in “conflict with the rights of others”.

The tribunal report noted that Legge had not expressed these views to his employer.

Sarah Tahamtani, head of employment and partner at the legal firm Clarion, told HR magazine that this case showed philosophical beliefs that are at odds with society, and would not be accepted in discrimination cases at tribunal.

She said: “This case demonstrates the difficulties employees can face in meeting this criteria for the purposes of evidencing a philosophical belief for discrimination purposes, particularly where that philosophical belief may be controversial and could be deemed potentially discriminatory itself. 

“It also emphasises that it will be difficult for employees to rely upon beliefs which have not been articulated or made known to the employer.”

In 2012, Legge worked as estates technical manager in the estates department, where he was issued a new contract.

Ms Larmour, deputy director of estates and the claimant’s line manager, was tasked with updating the modern strategy of the management on their team, which was made up entirely of men.

Read more: Gender-critical teacher loses unfair dismissal claim in pronouns tribunal

The tribunal report noted that the claimant was not happy with the department seeking to achieve more diversity and inclusivity, as “this was at odds with his non-feminist views”. 

It found that the claimant’s relationship with Larmour became increasingly strained because of this.

In August 2019, Larmour emailed Legge with concerns about his performance, and consequently set out an improvement plan for his performance, which was to be reviewed in March the following year. 

Larmour had allowed the claimant to work five days out of every 10 days, with full pay, to accommodate caring for his son while schools were closed during lockdown. But Legge alleged that Larmour created obstacles for him to home school his son.

By March 2020, Larmour was concerned with Legge’s ability to meet the expectations of the improvement plan whilst at the same time caring for his 10-year-old son during lockdown.

As a result, Larmour offered Legge special paid leave for 12 weeks, to sort out schooling and caring for his child, which he accepted. 

In May 2020, Larmour was appointed to a new role and in mid-May Legge submitted a grievance that named her.

As the investigation into the grievance progressed, Larmour began to fear for her safety due Legge's hostility towards her.

When she checked social media and Googled the claimant, she discovered he was practicing as a psychotherapist and reported that to his new line manager, who later contributed to a formal investigation into Legge’s potential breach of code of conduct.

During the investigation, an inquiry agent booked a psychotherapy appointment with Legge for the following day, when the claimant had meetings set up in connection with his environment agency job. 

Read more: Protected beliefs: what’s in and what’s out?

Legge requested last-minute leave, to allow him to be absent around the time of the appointment; the session went ahead.

The investigation and a subsequent disciplinary hearing found that Legge had failed to declare outside work, and was dishonest and fraudulent for engaging in outside work during work hours while being employed full-time by a public body.

He was dismissed in June 2021.

Tahamtani noted that this case also showed the importance of due process when dismissing employees for misconduct.

She added: “On a practical level, the case of Mr Legge highlights the importance of employers evidencing genuine conduct concerns and making these concerns clear in investigatory and disciplinary documents and outcome letters. 

“As the judgment in this case shows, this will be helpful in defending discrimination claims by evidencing that the actual reason for dismissal was genuine misconduct and was in fact unrelated to any alleged protected characteristic.”

The tribunal found that Legge was evasive and unhelpful both during the tribunal itself, and in the respondent’s disciplinary hearing. It ordered him to pay £20,000 of the respondent’s £106,000 legal costs.

Commenting for HR magazine on the topic of employees having a second job, Isobel Goodman, an associate in the employment team  at Charles Russell Speechlys, told HR magazine that “an employee working a second job in secret is most likely to cause a disciplinary or breach of working time regulations.”

HR should refer back to employment contracts and prioritise transparency, she suggested. “It is much better to encourage an open and honest culture to limit the HR risks that could arise,” she said.