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Background
Mr Martin was employed by Parkam Foods from November 2004 until his resignation in December 2005. Martin, a homosexual, was the subject of graffiti and offensive remarks. He complained, and the company removed his name from beside the graffiti drawing, although the drawing itself remained. When his name reappeared next to the drawing, Martin made a further complaint. As a result, notices were put up warning staff against drawing graffiti, but without mention of homophobia.
Martin was suspended due to the stress he was suffering and to enable the organisation to investigate his ongoing complaints. He then resigned and raised a grievance.
Martin presented a tribunal claim for constructive dismissal and direct discrimination, harassment, and victimisation on the grounds of sexual orientation.
Decision
With the exception of victimisation, Martin's claims succeeded. Despite the fact Parkam's anti-discrimination policies and procedures were communicated to managers, the tribunal found that the policies were ineffective in ensuring that graffiti did not occur and was not repeated. The warning notices dealt only with graffiti and not with the homophobia at the root of the problem.
The tribunal criticised the company for not apologising to Martin for the distress and embarrassment caused to him, and for failing to investigate his complaints with due diligence or sufficient seriousness. More firm instructions to employees were necessary, such as further training, ad hoc meetings or notes in pay slips. Finally, in the tribunal's view, Martin should not have been suspended because of his stress.
Comment
This judgment provides a useful indicator of the level of investigation and the approach an employer should take when faced with complaints of homophobia. Having policies in place and carrying out investigations may not be enough it may also be necessary to challenge people's attitudes towards homophobia and to educate employees.
The tribunal also noted that evidence of diversity within a workforce (in this case, the company showed it had approximately 12 gay and lesbian employees out of 300 staff) may not always help an employer seeking to prove that discrimination is unlikely to have occurred.
