Gillingham Football Club Ltd & Anor v McCammon

An employer victimises an employee where dismissal is, to a significant extent, because the employee has done a protected act. The statutory question is the employer’s reason for dismissal, not simply whether it honestly believed that misconduct occurred.

A complaint may have a severable feature, such as seriously abusive conduct or threats, but that distinction is exceptional. Ordinary intemperate language accompanying a discrimination complaint does not remove its protected character. A false allegation is excluded only where it was both false and made in bad faith under Equality Act 2010 section 27(3).

A tribunal need give reasons on the essential issues, not every factual dispute. A formal written employment contract cannot be displaced by asserting an omitted oral term without applying ordinary contractual principles.

The Employment Tribunal upheld the claimant footballer’s claims for race victimisation by dismissal, unfair dismissal and unlawful deductions from wages. It subsequently awarded remedies totalling £68,278.42.

The employers appealed. They contended that the Tribunal had failed to make necessary findings about an alleged confrontation following the claimant’s complaint of racism, his earlier absence in snow, and the alleged oral agreement permitting a 15 per cent wage reduction. They also challenged the findings of procedural unfairness and the refusal to reduce compensation for contributory fault.

The central issues were whether dismissal was because of a protected act under Equality Act 2010 section 27, whether the dismissal was unfair, and whether an alleged omitted oral contractual term could defeat the wages claim.

1. Appeal dismissed. The Tribunal made no error of law in upholding victimisation, unfair dismissal and unlawful-deduction claims.

2. Under Equality Act 2010 sections 27 and 39(4)(c), the essential question was whether dismissal was, to a significant extent, because of the protected allegation of race discrimination. The dismissal letter expressly identified the accusations of racism as a reason. The Tribunal was entitled to find that this reason stood independently from the allegation of aggressive conduct and that the employers had not established that the allegation was false and made in bad faith.

3. The employers’ honest belief that the claimant had committed misconduct was not the determinative question. The Tribunal was entitled to make the limited finding supported by the evidence: a heated argument involving shouting and swearing on both sides. It was not required to determine every contested matter, including the earlier snow-related absence, once it had resolved the essential statutory issues.

4. The distinction recognised in Martin between a protected complaint and a properly severable feature of its manner of expression applies only in clear cases. Shouting and abusive language, without more, did not justify treating the claimant’s complaint as having a severable and unprotected feature.

5. The dismissal was unfair. Victimisation was not a potentially fair reason under Employment Rights Act 1996 section 98(2). In any event, the Tribunal was entitled to find procedural unfairness: the claimant was not given adequate notice of the allegations or timely disclosure; the chairman had pre-judged matters and lacked impartiality; and the witness-statement process compromised the disciplinary process. These matters also supported unfairness under section 98(4).

6. The signed three-year contract was intended to embody the essential contractual terms. The employers could not resist a wages claim by merely asserting an orally agreed pay-reduction term omitted by mistake. The Tribunal correctly applied ordinary principles of rectification and was entitled to find insufficient evidence for rectification. Questions about the Tribunal’s power to grant or give effect to rectification did not arise for decision.

7. The Tribunal was not obliged to make a contributory-fault reduction merely because the claimant participated in a heated argument or because of an absence already dealt with by a fine and not forming part of the disciplinary charge.

• Employment Appeal Tribunal: dismissed the employers’ appeals and upheld the Employment Tribunal’s judgments on liability and remedy.
• Employment Tribunal, Ashford: by judgments dated 27 July 2012 and 23 August 2012, upheld claims of race victimisation, unfair dismissal and unlawful deductions, and awarded total remedies of £68,278.42.