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When employees appear to protest too much

In light of the sexual harassment claim brought by former John Lewis employee Konstantinos Kalomoiris being dismissed by the employment tribunal recently, it’s probably a good time to look a little closer at some of the issues it raised.

So, firstly, how is harassment defined? It seems the tribunal didn’t believe his account and took the view the slap/pat, which the female colleague claimed was on his back, did not amount to a ‘violation of his dignity nor did it create an intimidating, hostile, degrading, humiliating or offensive environment’, which is required to amount to harassment.

Another key factor here seems to have been the fact he had brought a number of formal complaints/grievances - all of which had to be investigated and were dismissed internally. This will have been cogent evidence of his predisposition to make allegations of a trivial nature and it would appear that there had been an attempt to have his claim struck out at an earlier hearing. He claimed sex discrimination alleging that the manner and response in which his claim was treated would have been different had it been a woman complaining about a man. But of course the company was entitled to argue that they may equally have dismissed such a trivial claim by a woman if after a full investigation, they made a similar finding.

So what, if anything can employers do if they find they have an employee who is a ‘serial’ complainer?

Paul Grindley, Head of the Employment team at Yorkshire Law firm Keeble Hawson LLP says: “There is recent case law, decided at the end of last year, suggesting that employers may in extreme cases discipline and even dismiss workers who repeatedly complain for no good reason - although this would run the risk of a separate claim for victimisation. The case involved a secretary in a firm of solicitors who made repeated claims – although there were other factors including a history of mental illness with psychotic episodes, that were an important part of the overall picture.”

Paul concludes: “The secretary’s case will be welcomed by employers as it confirms that in some circumstances it will be fair to dismiss an employee because they have raised unreasonable, multiple grievances which have led to an irretrievable breakdown in the relationship between employer and employee.”

“However, employers should still regard dismissal as a last resort in such cases. The EAT were careful to stress that it would only be in limited cases that dismissing an employee in such circumstances would not be victimisation. As the EAT noted, "employees who bring complaints often do so in ways that are, viewed objectively, unreasonable", but made it clear that employers who object to "ordinary unreasonable behaviour" such as the use of "intemperate language" or "inaccurate statements" will still be treated as objecting to the complaint itself.”

Paul can be contacted at paulgrindley@keeblehawson.co.uk