Advocate Christopher Austin of Le Gallais & Luce’s litigation department was recently appointed as amicus curiae in an employment related case for a claimant who had brought a claim against the States Employment Board and Others (Tribunal case reference: [2022] TRE 31A) which was heard by the Jersey Employment and Discrimination Tribunal. The amicus curiae is an impartial legal advisor appointed to assist a Court or Tribunal, usually where complex issues of law or fact arise, and most frequently where one of the parties to the proceedings is not legally represented which can create a perceived ‘inequality of arms’ between the parties.
In brief, the claimant was a former employee of the States Employment Board (“SEB”), who alleged that the behaviour of their employers had left themwith no alternative but to resign from their job, on which basis constructive unfair dismissal was claimed. In addition claims based on sex and disability discrimination against the SEB and certain of its employees were made.
The claim of constructive unfair dismissal was based on the SEB’s handling of serious allegations of misconduct which had been made against the claimant by two other members of staff following a non-work organised night out, which had then resulted in an internal investigation into those allegations. During the course of the investigation the claimant, who was accepted by the tribunal as suffering from Complex Post Traumatic Disorder (“C-PTSD”), had been largely excluded from continuing to work over a period of approximately 4 months. Despite this the claimant was not formally suspended, and alleged that they were not kept updated as to the progress of the investigation or offered work when they asserted that in fact they should have been.
The claimant was also critical of the handling of the investigation itself, which they alleged had not followed the SEB’s own policies, denying them safeguards such as regular formal reviews of their continued suspension, which reviews would have had to take place had their suspension been formalised. They also alleged that the SEB had failed to provide them with the counselling support that they required following the complaints against them/the subsequent investigation of those despite requests for funding for continued counselling which the SEB had received from their counsellor. The claimant alleged that the failure to provide such counselling was discriminatory in light of the SEB’s knowledge of their C-PTSD, which constituted a disability under the provisions of the Discrimination (Jersey) Law 2013, and that their relationship of trust and confidence with their employer was irretrievably damaged as a consequence these issues.
Having heard from both the claimant and a number of witnesses for the SEB/Respondents, the tribunal upheld the claimant’s claim for constructive unfair dismissal against the SEB, and awarded them compensation of £3,367.12 for that. It also upheld their claim of disability discrimination against the First and Second Respondents due to the removal of counselling, and awarded the claimant £9,788.02 for that. All the claimant’s claims of sex discrimination and other claims of disability discrimination were rejected.
The tribunal’s decision highlights yet again the importance of employers following their own employment policies, and doing so in a timely and transparent fashion
whilst documenting what they have done at each stage. The importance of maintaining regular and appropriate communication with an employee during the course of any disciplinary investigation, as well as considering and accommodating the needs of the employee throughout that process in order to avoid discriminating against them, particularly where the employer is, or should be, aware that the employee has a particular protected characteristic, is also emphasised.
Seeking appropriate legal advice at an early stage can assist to avoid issues of the type highlighted above.
For legal advice please contact the experienced employment law team at Le Gallais & Luce, who will be happy to provide an initial telephone consultation free of charge to ascertain whether your issue is one with which they can assist. Please call the team on: 01534 760710, or alternatively contact Advocate Christopher Austin at: caustin@lgl.je