Worker’s birthday card opens tribunal can of worms

EMPLOYERS are usually keen to avoid going to employment tribunal hearings if possible. Defending tribunal claims takes time and effort.

You have to provide copies of the documents that are relevant to the dispute, submit written witness statements and attend the final hearing, where witnesses are crossexamined on their evidence.

Witnesses are often employees and former colleagues of the claimant who, when it actually comes to the final hearing, will feel stressed about being cross-examined.

Costs are very rarely awarded against the losing party so the winning party usually has to pick up their own legal bill.

Then there’s the fact that since February 2017 all decisions made by the employment tribunals are published and available free online.

You can, if you are so minded, search the names of individuals and companies, and if they’ve been involved in an employment tribunal that went to final hearing you can read about all the facts.

Washing your dirty linen in public this way is not for everyone.

For all these reasons lawyers generally try in employment disputes to secure an outcome for their clients (whether employer or employee) that doesn’t involve going to final hearing.

Going through an employment tribunal can feel like losing, even when you win, and “Pyrrhic victories” are something that employment lawyers learn to warn about early on in their careers.

Of all employers keen to avoid tribunal hearings, solicitors’ firms are usually amongst the most eager.

Our business involves advising others on following correct processes and evaluating litigation risks.

We prefer if possible to avoid having our internal processes or decision-making subjected to scrutiny or read about by clients and competitors.

This month the press picked up on an age discrimination claim brought by a legal secretary, Miss H Munro, against her former employer, Sampson Coward LLP, a fourpartner solicitors’ firm based in Salisbury.

Ever since the Equality (Age) Regulations were first introduced in 2006 the possibility of someone complaining about age cards, and in particular about cards with “bantz” about being past it or over the hill, has been highlighted as a risk by employment lawyers.

Miss Munro was the person who finally brought that claim.

She claimed that by sending her a card for her 50th birthday and a member of staff saying to her “It was your 50th, wasn’t it, you can’t hide it from us,” her employer had subjected her to age discrimination.

Following receipt of the card, Miss Munro left work and called in sick the following day.

When she returned to work she wrote a letter to one of the partners, which included the following: “I come to work to earn money… I’m a private person with a belief that personal matters can remain private and should do so if the individual wishes it.

“I have not sold my soul only my working hours.

“I don’t want or expect a colleague to come to my desk and ambush me while I’m working and point out something to me which I have not chosen to disclose to anyone… I felt ambushed, punched, slapped and humiliated.”

A week or so later a legal executive for whom Miss Munro typed was being appraised.

The legal executive complained she was so dissatisfied with Miss Munro’s work she might as well have typed her work herself.

The firm decided to offer Miss Munro a settlement agreement to leave, offering her one month’s pay in lieu of notice plus an additional £1,700.

Miss Munro did not accept the offer and then made a formal complaint that there had been a breach of data protection concerning her date of birth and also client data.

She claimed there were “lax practices and a casual culture of everyday handling of client data at Sampson Coward LLP”.

The firm rejected her complaint and said they would not be increasing their settlement offer and if the offer was refused Miss Munro should return to work.

Miss Munro subsequently resigned and brought a tribunal claim.

At the final hearing the tribunal found that there was no age discrimination and that Miss Munro was not treated less favourably because of her age.

They also found that there was no public interest disclosure and that Miss Munro had made the disclosure about data protection out of self-interest.

For that reason and also because Sampson Coward had made a series of offers to settle the claim the tribunal made an award of costs against Miss Munro in the sum of £1,700.

Costs orders are very much an exception to the rule, but even with a costs order, this case cost Sampson Coward dear.

The case took a year to get to final hearing, which is fairly standard but feels like a long time for the people involved.

The final hearing was over four days.

The law firm had two partners and two legal secretaries out of the office giving evidence rather than doing chargeable client work over the course of those four days.

The full legal fees for the barrister they instructed were £12,740 and this did not include any of their own time for dealing with the case.

A necessary part of analysing how the firm handled the case caused the tribunal to note that they were surprised at the lack of minutes drawn up by the law firm to record its meetings with Miss Munro.

The decision also highlighted that one of the partners dealing with Miss Munro’s complaint, the head of the employment team, had referred to the old test of good faith in whistleblowing cases rather than the new test of being in the public interest and that it was “perhaps unfortunate and more emotive for him to have quoted the wrong test”.

Sampson Coward won the case, but I imagine they would have preferred not to have been proven right and for the case to have instead been settled at an early stage.

Of course, the case also cost Miss Munro dear.

Having wanted to keep personal matters private (to the point of asking at tribunal that her age not be referred to during the hearing) the fact that she was 50 in 2018 is now a reported tribunal decision.

She refused a settlement payment and spent a year of her life in litigation to not only lose her case but be ordered to pay £1,700 to her former employer.

I imagine she too may wish she had instead accepted one of the offers to settle and not have people reading about her in columns like this.

One final point. Despite the tribunal having found in this case that sending a birthday card with an age on it is not age discrimination, I’d still advise against sending employees cards that contain jokes about being past it.

■ Bethan Darwin is a partner with law firm Thompson Darwin.