The dismissal of a legal secretary who made homophobic comments was unfair because of the way her employer ran the disciplinary process, an employment tribunal has found.
Ms Rootes, who worked at Brighton-based Edward Harte Solicitors, was dismissed by the firm after a colleague complained about comments she had made, including that she would never speak to a lesbian because “it’s a deadly sin” and that she was “okay with gay men but not gay women”.
She was also alleged to have described a lesbian colleague as “repulsive” and refused to engage with her at work.
The judge said: “These are homophobic views about gay women that the claimant is sharing with a less experienced, relatively new member of staff, at the respondent. They are unpleasant and personal… They are clearly blameworthy.”
LGBT+ inclusion
However, the judge said the comments were “not quite as offensive as the allegations brought against the claimant by the
respondent in the disciplinary process”.
The tribunal was told that Rootes had received “a traditional upbringing including in relation to the role of women in society”.
In 2013, she was given a written warning for saying that a fee-earner had “a chip on her shoulder, she’s half-caste”.
In 2021, a receptionist made the complaint about the homophobic comments. She was invited to a disciplinary hearing in October 2021, in which she denied she had made the comments.
During the disciplinary process she was questioned about the incident in 2013. Rootes said she could not recall referring to a colleague as “half-caste”. She was also asked about a conversation in 2015 relating to her behaviour towards a lesbian colleague, but the disciplining manager concluded she was not being truthful in her recollections of this conversation.
Following this meeting she was dismissed by the firm. The dismissal letter claimed she had not responded frankly and honestly to the allegations raised, and that she had breached the firm’s diversity policy.
After an appeal, an investigation carried out by an external HR consultant upheld Rootes’ dismissal.
However, the tribunal found the firm relied too heavily on Rootes’ failure to recollect the informal discussion in 2015 about her conduct, despite there being no contemporaneous evidence of this discussion, when dismissing the claimant. It also placed too much emphasis on her failure to recollect the “half-caste” comments made in 2013, some eight years before the disciplinary hearings, as a reason to doubt the claimant’s honesty.
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The judge found the investigation process had been unbalanced and relied too heavily on historical matters rather than the specific allegations that had been made in 2021. This, the judge said, rendered the investigation and dismissal unfair.
Because of the nature of her comments, the judge ordered that Rootes’ basic award and compensatory award should be reduced by 75% to reflect her culpability in her dismissal. Compensation will be decided at a further hearing in July 2023.
