Employers who fail to follow the dismissal and re-engagement code of practice may find themselves...
Employee Dismissed Fairly for Bringing Claims Which Were Malicious, Vexatious and Frivolous
In Ngwenya v Cardinal Newman Catholic Secondary School UK, the Claimant, a school teacher, brought an unsuccessful claim against the school for race discrimination and underpayment of salary. The tribunal struck out his claims for being out of time, misconceived and having no reasonable prospect of success.
The school then commenced an internal investigation into the claimant’s allegations, which it found were completely unsubstantiated and ‘malicious, vexatious and frivolous’. Following a disciplinary hearing the Claimant was dismissed on the grounds of gross misconduct.
The Claimant brought a claim of unfair dismissal, which he lost. The Tribunal decided that the Claimant had been dismissed for misconduct, namely pursuing ‘malicious, vexatious and frivolous’ claims against the School which was so serious that it destroyed the employer/employee relationship. The school had followed a fair investigation and disciplinary process and the decision to dismiss fell within a ‘band of reasonable responses’.
The Claimant appealed on the ground that the tribunal had failed to consider whether the school had a reasonable belief that the claims were made in bad faith and that it acted unreasonably in not dismissing his colleague in similar circumstances.
His appeal was unsuccessful. The EAT decided that the evidence produced by the school showed that it had considered and genuinely believed that the charge of ‘bad faith’ was made out. With regard to the comparator point, the EAT decided the circumstances were different in subject and substance, particularly when comparing the numerous allegations against multiple staff at all levels that the Claimant had raised and not retracted and the single complaint raised by his colleague which had been retracted and followed by an apology.
It is important to note that the Claimant did not bring a claim for victimisation namely that he was dismissed for having raised complaints of discrimination. This is a stand alone offence of discrimination and even if a Tribunal finds that there is no justification for such an allegation, this will not stop a successful complaint of victimisation, unless the complaints are found to have been made in bad faith.
In the complaint made by the Claimant to the Tribunal, they had found that his complaints were misconceived and the employer went on to find that they were made in bad faith. This should have been sufficient to have protected the employer from a victimisation claim but this case should be treated with caution as it does not set a general principle to say that if employees make false claims they can be dismissed for gross misconduct.