15th March, 2017
Lots of businesses consider using HR Consultancies as they perceive a costs saving, however, the most well known, Peninsula, has recently been faced with dealing with a Tribunal claim itself brought by ex employee (he was dismissed for redundancy following the issuing of an ET1), Mr L Baker, who was a “lawyer” providing legal advice and representation in tribunal hearings. Solicitor and Barrister is a defined qualification, lawyer is not. Peninsula’s troubles in this case might be of interest to employers.
The main issue in this case was whether Mr Baker could successfully claim harassment when he had not actually established that he is disabled under Section 6 of the Equality Act 2010. The answer was no.
Mr Baker had in January 2014 told Mr Ramsbottom, Peninsula’s Advocacy Manager, that he had dyslexia. An Occupational Health Report recommended reasonable adjustments and stated that Mr Baker was likely to be considered disabled.
Following this, Mrs English, Peninsula’s Director of Legal Services, decided to carry out the surveillance because she suspected that Mr Baker was not devoting the whole of his time and attention to Peninsula’s work. Mrs English denied knowing that Mr Baker was alleging that he was a disabled person when she authorised the surveillance although she was aware that he had been referred to occupational health.
Mr Baker claimed that by putting him under surveillance between 1-5 September 2014, and only telling him about the covert surveillance for the purpose of a disciplinary, amounted to unwanted conduct related to the protected characteristic of disability and that this had the effect of violating his dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
The Employment Tribunal (ET) found in favour of Mr Baker stating that Peninsula had:
“reacted adversely to the evidence of an individual’s disability and engaged in an aggressive and unjustified strategy against an employee. The trigger is the disability issue. This is a clear case of harassment related to disability”.
Peninsula appealed and the Employment Appeal Tribunal (EAT) overturned the ET’s decision stating that:
“In my judgement the ET was bound, on the basis of the findings it made, to dismiss the harassment claim, because the Claimant had not shown that he was a disabled person within the meaning of section 6 of the 2010 Act. The harassment claim was therefore bound to fail”.
Perhaps just as interesting is the fact that despite describing themselves as the leading HR, employment law and health & safety consultancy firm, Peninsula decided to instruct solicitors and a barrister in relation to defending this claim. It appears when their own interests are at stake, their own team was not used. It also appears that this is not a fact that they wish to advertise. Daniel Barnett, employment law barrister, claims that Peninsula has blocked him on Twitter following his tweet which stated:
“Interesting how @peninsual_uk instruct a proper barrister when they want a proper job done bailii.org/uk/cases/UKEAT….#ukemplaw”
Our view is that HR always has its place, but that is not doing the work of solicitors or barristers.
If you need Employment Law advice that you can trust, please contact our Employment department.
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