Welcome all and thank you for joining us for another case of the week update. This week we’ll be bringing the festive joy by looking at a 2010 case involving a Christmas party!.. And the dismissal that occurred shortly afterwards.

For anyone that missed it, our last update looked at a case where an employee resigned in the heat of the moment in response to a discussion about his annual leave, then later tried to retract it. You can find last week’s update here.

In this case the Claimant, Miss Nixon, was employed by the Respondent company, Ross Coates Solicitors. In 2007, the Claimant was in a relationship with another employee, a solicitor at the Respondent, with whom she was having a baby and was pregnant. No-one was aware of her pregnancy at this time, including the Claimant. At the Respondent’s Christmas party the Claimant spent the night with another, different, member of staff – another solicitor at the firm. The implication, while unconfirmed, was that the two had slept together.

In early 2008, the Claimant took time off for pregnancy related sickness. On her return to work, she informed one of the partners at the firm of her pregnancy in a manner that she thought would be in confidence. However, shortly afterwards other members of staff were gossiping about the paternity of the baby. The Claimant raised a grievance about the conduct and asked to be transferred to another office. When the request was denied and her pay stopped, the Claimant resigned and brought a claim for constructive unfair dismissal, discrimination on the grounds of sex and pregnancy, and harassment for the same.

The Employment Tribunal at first instance rejected the claim that spreading rumours amounted to harassment or discrimination given that the rumours only arose as a result of her conduct at the Christmas party. As a result, the claim that her change of office was refused on this basis was also rejected. However, the ET did find in favour of the argument that the refusal to change her office and subsequent withholding of pay amounted to a repudiatory breach of contract with entitled the Claimant to resign. Her claim for unfair dismissal was allowed, on the small caveat that her award would be reduced by 90% as a contributory conduct on the Claimant’s behalf. The ET also found fault in the post employment conduct regarding the Claimant’s approach to forcing a compromise. The Claimant appealed to the Employment Appeal Tribunal.

The EAT found in favour of the Appellant (the Claimant before). Given that the gossip was about the paternity of the baby it was impossible to separate the unwanted conduct from the protected characteristic. Thus, the appeal for discrimination and harassment was allowed. The EAT also found that the reduction on the basis of conduct after the employment had ceased was not appropriate. Only the conduct which occurred during employment should be examined when dealing with reductions. It is worth noting that the EAT mentions specifically that had the misconduct been the Claimant’s behaviour during the Christmas party which resulted in her dismissal, the argument for a reduction would have succeeded. It was the breaking of the causation between the events of the party and the gossiping about the event and pregnancy afterwards that caused it to fail.

Takeaway Points

Well, apart from the issues many women will face of whether to inform their employer prior to their 12 weeks of pregnancy, the easiest solution to this case would have been to maintain the trust placed in senior leadership by not informing other members of staff of confidential information! Ensuring that information told in confidence is kept confidential will not only result in fewer claims, but also fewer feel bad moments in realising a lack of trust between employee and employer.

The Tribunal’s point, however, of ensuring professional conduct even while on a work event, is important also. Ensuring that employees are reminded of their responsibilities, especially so given the upcoming changes to sexual harassment in the Equality Act, during work events can help ensure that a standard is maintained throughout.

If you or someone you know, has experienced any of the issues raised here, please contact a member of our team who will be able to assist you.