Offer of work retracted due to Claimant’s questions about equal pay (Andrews v St Mungo’s Community Housing Association -ET/3202301/2019)
In the case of Andrews v St Mungo’s Community Housing Association -ET/3202301/2019 the Employment Tribunal held that a business had withdrawn an offer of work to an agency work after she had previously raised questions about equal pay at the organisation.
The facts in Leigh Andrews v St Mungo’s Community Housing Association
Ms Leigh Andrews (the “Claimant”) commenced employment with Broadway Homeless and Support (“Broadway”, “Respondent”) in September 2002 as a Welfare Rights Co-ordinator in London. The Respondent would later become St Mungo’s Community Housing Association following a merger in 2014.
In around the middle of February 2004 she applied for, and was successful in her application for a job at Oldham Borough Metropolitan Council (“Oldham BC”). The Claimant gave one month’s notice she was required to give, to the Respondent, on or before 7 April 2004. After her employment was terminated on 7 May 2004 she subsequently joined Oldham BC (later in May 2004).
Shortly after the Claimant gave her notice she was called to a meeting to discuss bullying allegations that had been made against her by her line manager. The meeting was conducted by a senior manager. At that meeting the Claimant was told that there had already been a preliminary investigation of the allegations and consideration had been given to a formal investigation, but the decision had been taken not to proceed. This came as a surprise to the Claimant, who was not aware of the hearing or had the opportunity to respond to the allegations. She denied the allegations and asked that Broadway hold a disciplinary hearing to properly determine the matters. Further, she also offered to return the London after her employment ended, in order to participate in that hearing but this offer was rejected. No subsequent action was instigated against the Claimant.
No direct evidence was submitted to the Tribunal to substantiate that the Claimant bullied any colleagues. The view of the Tribunal was that the allegations of bullying remained unproven and unsubstantiated with little bearing on the Claimant’s reason for resigning. In fact the Claimant had expressed a desire to cooperate with any proceedings even to the extent of returning after her employment had ended.
Shortly after leaving Broadway, the Claimant discovered a male member of staff was being paid more for work she considered to be of equal value. She instructed solicitors to send an equal pay questionnaire to the Respondent and lodged a claim at the Employment Tribunal. The Respondent replied to the questionnaire but the Claimant decided not to pursue proceedings further due to the financial risk of pursuing proceedings.
From July 2017 to July 2018 the Claimant worked with St Mungo’s as a freelance consultant. She worked closely with many vulnerable clients and no issues around her conduct or performance arose during the period she worked in this role and she had played a lead role on some key projects. In May 2018 the Claimant applied to join St Mungo’s bank of locum workers and was informed by email dated 23 May 2018 she had been successful pending pre-employment checks.
A member of staff at St Mungo’s acting as a witness for the Respondent, recalled the Claimant being involved in bullying allegations at the predecessor organisation Broadway in 2004, particularly as they had been `so extreme’ in her view. The evidence provided by another witness setting out examples of alleged behaviours considered at the time included: `cold shouldering her’, `Deliberately excluding her from team conversations’, `snide comments intended to undermine her perceived lack of experience …’. The Tribunal disagreed with the characterisation these allegations could be considered as `extreme’ .
On 8 June 2018 the Claimant received an email withdrawing the offer of locum work citing information having come to light from the period she had worked at Broadway. The Claimant requested sight of this information and was informed this related to the disciplinary investigation she was undergoing whilst working at Broadway for allegations of bullying. More generally the `general policy’ of not offering employment to anyone re-joining the organisation who has been subject to such action or resigned before investigations are complete should not be offered employment.
The Claimant brought claims in the Employment Tribunal (ET) for victimisation against the Respondent on the basis of revocation of an offer to join the Respondents locum bank.
The decision of the Employment Tribunal
The ET found that the Claimant had discharged the burden on her to prove a prima facie case – they concluded that the questionnaire and the equal pay claim were material facts in their decision that the Claimant had discharged the burden of proof. They saw no evidence from the Respondent to prove the existence of a `general policy’ applied consistently and were not convinced by the Respondent’s submissions which relied mainly on the bullying allegations. The allegations of bullying remained unproven allegations that were never properly investigated despite the insistence of the Claimant to do so. The ET found that there was a causal link between the protected act (equal pay questionnaire and proceedings) and detriment suffered by the Claimant in the form of revocation of the offer of employment.
Our solicitors’ views on the case of Leigh Andrews v St Mungo’s Community Housing Association
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “In this case the failure of the employer to complete the disciplinary investigation and to allow the employee due process was fatal to their argument that the bullying allegations were the cause for the revocation of the job offer.”
The decision of the Employment Tribunal in Andrews v St Mungo’s Community Housing Association (ET/3202301/2019) can be found here.