Plaut v University of Exeter: Unfair dismissal and discrimination

In this decision on unfair dismissal and discrimination, the Employment Tribunal (ET) had to consider if an academic, who claimed her race and sex lead to inherent characteristics of being naturally loud and argumentative, and her body language demonstrative, was unfairly dismissed and discriminated against for the way she dealt with PhD students.

LAW

Section 98 Employment Rights Act 1998 provides: 

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – 

     (a) the reason…for the dismissal, and 

     (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. 

(2) A reason falls within this subsection if it – 

     (b) relates to the conduct of the employee. 

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- 

     (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 

     (b) shall be determined in accordance with equity and the substantial merits of the case. 

Section 13 Equality Act 2010 (Direct discrimination) 

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

FACTS 

The claimant, a Doctor of Physics, was dismissed from her employment of 30 years due to the way that she had dealt with two PhD students. 

It was alleged by one, although not until some time after the incident, and the account that that lead to the ultimate disciplinary hearing appears to have been exaggerated, that a light was shone in the students’ eyes. This led to a final written warning being issued, but the claimant was left on suspension for some time afterwards. 

The claimant was eventually dismissed following further allegations of shouting at another student, and an irretrievable breakdown in the relationship between her and her colleagues. 

She claimed that the dismissal was unfair, and discriminatory both on grounds of sex and race, as her eastern European Jewish heritage gave her inherent characteristics which lead to the way she dealt with her students. She was naturally argumentative, inherently loud and used demonstrative body language. She was described as a ‘marmite’ character, which she also attributed to her passion for her subject. 

She claimed that as a woman working in a male dominated field, she was the subject of unconscious bias that prevented her from being treated fairly, and that this lead to the decision to dismiss her for her behaviour. The respondent argued that this had nothing to do with the decision to terminate, but that her behaviour in shouting at students was enough to make her continued employment no longer tolerable in the department. 

EMPLOYMENT TRIBUNAL (ET)

Whilst rejecting her claims of discrimination, her claim for unfair dismissal did succeed. 

In relation to the discrimination claims, the claimant’s argument that how she is, is directly linked to her racial heritage, was rejected. It was the view of the tribunal that if the perception of others was that she was shouting at them, that she blamed this on her racial heritage did not make it any less disturbing for those being shouted at. What was in question was the human reaction of those being shouted at, and not a matter of racism. Moreover, the claimant argued that her behaviour was the same for those of middle East or Mediterranean origin. However, the department in which she worked did have many people sharing this origin, some of whom were women, but who did not have the same issues as her. 

With regard to the unfair dismissal claim, however, this did succeed. The tribunal found that the dismissal was substantively unfair due to the fact it was apparent the respondent did not want her back to work. Requests for mediation during the initial disciplinary process were rejected, and during a period of suspension no action was taken to assist the claimant with equality training or voice coaching in order to support her in how she came across. A further period of suspension was seen as a pretext by the respondent to move the process towards dismissal, as the investigation into these secondary matters was found to be poor, without direct investigation with the student involved and totally unsatisfactory support from the HR department. 

The issues with the proceedings leading to dismissal were found to be fundamental: had a fair process been followed, the tribunal could not see that a dismissal would have been the outcome. In this matter, the tribunal put forward that the only way to achieve a fair dismissal would have been by following a performance improvement plan with the claimant. The event that led to dismissal was not a ‘sackable offence’ according to the tribunal, and the fact that the respondent was a large, well-funded organisation with many resources available, and that the claimant had long and unblemished service with them, were all taken into account in reaching this decision.  

The tribunal also held that whilst an appeal can cure previous defects in a process, in this case it was so long delayed the outcome was unavoidable (in this case, rejecting it), and therefore it simply was not fair. 

The award for unfair dismissal was also uplifted by the maximum of 25% for failing to follow the Acas code of practice.

Note for employers 

This case is an important reminder for employers of the need to follow a fair, thorough and unbiased process. Evidence was found by the tribunal throughout the disciplinary procedure of decisions being made because they wanted the claimant out. It was widely acknowledged that she was a difficult character, but that in itself is not grounds for dismissal, and the respondent should have thought more carefully about the seriousness of the situation before moving to dismissal. 

That the discrimination claims were rejected here shows that pinning undesirable character traits on racial heritage or sex and using that to expect to be excused for them, is unlikely to succeed as an argument. Some traits are unique to particular protected characteristics and there are times that allowances should be made, such as reasonably adjusting for a disability. However, shouting, being rude and acting aggressively are not traits that would, in most scenarios, be protected.  

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