Victimisation and Discrimination — Important New Lessons for Employers - as published in HRZONE

A recent prominent case in which a banker was fired from her job after it was found she was suing her previous employer for sex discrimination brings important lessons for all firms.  

This article, written by Jessica Corsi, Partner at Doyle Clayton, was originally published in HRZone http://www.hrzone.co.uk/topic/employment-law/victimisation-and-discrimination-important-new-lessons-employers/138672

What happened in Bouabdillah v Commerzbank AG?

In the very recent case of Bouabdillah v Commerzbank AG, Latifa Bouabdillah started working for Commerzbank in May 2012 and was later sacked when it found out that she had filed a discrimination claim against her previous employer and rival, Deutsche Bank. There was prominent press coverage saying she was claiming £1million in damages, although such claims need to be treated with a strong pinch of salt.

The background is that she had left her role with Deutsche Bank in 2011 after claiming that male colleagues were being promoted ahead of her and receiving unjustly larger bonuses.

Commerzbank first heard about this discrimination claim after they had hired her when an article was published about the original case in financial news service Bloomberg. She was immediately called for an interview with her line manager and the issue was quickly escalated to senior management. Subsequent meetings were held to discuss the matter.

Bouabdillah was questioned on why this information was not disclosed before. Commerzbank felt that this hidden claim revealed a breakdown of trust and honesty.

One of the witnesses for Commerzbank, Guy Middleton, who is head of sales and trading at its exotic vanilla funds team, told the tribunal: "I was initially unsure whether Bouabdillah should remain in the team as I initially thought that the trust between her and the team might be recoverable. But as time went on I felt that she had made a conscious and considered decision to withhold information, which made me feel that she could no longer be trusted". 

Whereas Bouabdillah felt the claim against her previous employer was a private matter and had no relevance to the professional aspects of her current position

Bouabdillah said: “I said that I was the victim in my claims. It seemed to me that they were just looking for an excuse to dismiss me. I felt rejected. The meeting upset me a lot. I had been compared to a criminal. I felt that for him I was guilty until proven innocent. I left the meeting feeling terrible, humiliated and very worried about my future.” Bouabdillah was dismissed a month into her employment.

The outcome

The tribunal concluded that Bouabdillah had never misled Commerzbank and had given direct answers to direct questions in relation to her role – she was never deceptive or dishonest.

The court supported Bouabdillah’s view that the matter with her previous employer was personal and had no connection with her role.

The tribunal ruled in favour of Bouabdillah and said: “We find that the respondent victimised the claimant for having brought sex discrimination proceedings against her former employer and subjected her to the detriment of dismissal.” 

The judge said that Commerzbank “had a knee-jerk reaction” to the article, and had unlawfully discriminated against Bouabdillah.

What does this mean for employers?

Firms need to remember to stick to the relevant issues in cases like this. Importantly, Bouabdillah never neglected her duties at Commerzbank.

The bank’s arguments were quickly dismissed by the tribunal. It was found that many of the employees at the firm, including senior HR personnel and line managers who acted as witnesses for Commerzbank, did not properly understand that their actions could be seen as discriminatory.

This case illustrates how crucial it is for all employees— including senior HR personnel and line managers — to be given proper training in all aspects of managing people and understanding employee rights.

For instance, in the recruitment process, including drafting application forms, employers need to ask themselves:

• is this question relevant to the employee's suitability for the role; and 
• if it is, then could it in any way be construed as discriminatory?

If the answer to the second question is "yes", stop there, and go back to the drawing board.

So, for instance, it is very difficult to see how the question, “Have you ever brought a case for unlawful discrimination?” could ever be relevant to a particular role – unless the role is for an employment lawyer who will need to bring discrimination cases!

Employers also need to ensure that their employees are given proper training in dignity at work and the surrounding issues. The aim of such training is to ensure that employees have a reasonable understanding of what is and is not legally acceptable behaviour – and this includes a proper understanding of what victimisation is, and that it is not acceptable.

Such training can help an employer build a defence against a victimisation claim, by showing that it has taken all reasonable steps to prevent such behaviour taking place. The standard is high, however, and employers will need to ensure that they do more than pay lip service to equality law, and that such training is repeated and employees’ understanding is refreshed at regular intervals.

Ms Boubdillah was victimised by Commerzbank while employed by the bank. But what if an employer victimises an ex-employee, for example, by giving her a bad reference? The answer currently hangs in the balance. Equality law was drafted in such a way as to exclude this from usual protection, but there are conflicting tribunal decisions on this. The court is expected to rule on the issue soon but the strong message to employers who are tempted to exact revenge on a former employee who complained of discrimination when employed, is “Don’t do it!”.