Legal opinion: Victimisation for not informing employer of discrimination claim

An employment tribunal has found in favour of a city banker’s claim that she was victimised when her employer dismissed her after having discovered that she was suing her previous employer for sex discrimination. Justin Govier from IBB Solicitors looks at the implications of the case for employers.

Latifa Bouabdillah resigned as vice president of Deutsche Bank towards the end of 2011 and brought a claim against it for sex discrimination. She then joined rival bank Commerzbank AG. She did not volunteer details of her sex discrimination claim against Deutsche Bank during the interview process with Commerzbank. Ms Bouabdillah did inform Commerzbank when Bloomberg published an article on the case (referring to her new employment). Commerzbank alleged a breach of trust and confidence and that the bank’s reputation had been put at risk. Ms Bouabdillah was dismissed in June 2012.

A breach of trust and confidence?

Trust and confidence is a term implied in all employment contracts and applies both to employers and employees. A breach of trust and confidence is often cited as the reason for an employee resigning and bringing a claim for constructive unfair dismissal. Examples of this may include an employer subjecting an employee to excessive workloads, refusing to investigate an employee’s complaints promptly or undermining an employee’s position.

However, as in this case, an employer may also allege that the employee has breached the trust and confidence and bring disciplinary proceedings as a result. This may include an employee persistently raising grievances and doing something that adversely affects the reputation of the employer. Although the argument of breach of trust and confidence and reputational risk was unsuccessful in the present case, there are circumstances in which the tribunal would be persuaded that it could lead to a fair dismissal. Providing the employer can show that the breach of trust and confidence has had an effect on the employment relationship to the point that the relationship is irrevocably damaged, there may be the possibility of the dismissal being considered fair.

Judges have expressed their cautious approach to dismissals based solely upon a breach of trust and confidence and in any such case an employer should expect the decision to dismiss to be put under the microscope – with both the employee’s action and conduct and the consequences (both on the employment relationship and the employer’s reputation) being examined carefully.

The employer must be ready to show (with evidence) that the employee’s actions have had the effect on reputation that the employer is alleging and/or that it was reasonable for the employer to dismiss the employee in all the circumstances. The problem for the employer (or the employee in constructive unfair dismissal claims) is that the term of trust and confidence is less tangible than the express terms of the contract and therefore there is far more scope for argument.

Must employees inform a new employer about previous discrimination cases?

In this case, the tribunal did not accept that Ms Bouabdillah should have informed Commerzbank of the sex discrimination claim against Deutsche Bank earlier or that her failure to not give entirely full answers to questions and her failure to answer questions that were not asked amounted to a lack of honesty and trust.

It may well be that the tribunal had in mind the potential consequences of a high-profile case implying that an employee must inform any prospective employer of ongoing (or even previous) discrimination claims. The headlines that might create could lead to a reluctance in employees bringing genuine claims (for fear that they may never work again), employees and candidates outright lying about any “claims history” and the exacerbation of a blacklisting culture.

Avoiding an “immediate and emotional response”

Ultimately, cases such as this are always going to be decided on the unique set of facts of each claim and it must be remembered that this case was about victimisation, not unfair dismissal.

Despite the various headlines, therefore, it cannot be concluded from this case that an employee is entitled to never disclose previous or ongoing claims (particularly if asked directly) or that an employer can never dismiss an employee for withholding such information. But what is absolutely clear, and in many respects hardly surprising, is that an employer must consider carefully whether or not the allegations of this nature are sufficient to justify a dismissal – in the context of the employee’s conduct, the consequences to the employment relationship and the employer’s reputation.

The tribunal referred to Commerzbank’s “immediate and emotional response” to discovering the claim against Deutsche Bank and, as we all know, tribunals expect fair and reasonable responses from employers at all times, particularly when an employee’s job is on the line.

Justin Govier is a partner at IBB Solicitors