An employee who was found to have “engineered his claim from the start” and whose whole purpose of joining the Company was found by the judge to be “to gather evidence that he could then use to make a claim and negotiate a favourable financial settlement,” has failed in his plan.
The judge held that the employee, who had only worked for his employer for nine shifts and had asked for a £20,000 ‘pay-off’, had not been subjected to sex / sexual harassment or whistleblowing detriments.
So, what happened in the case of Kumi v Nandos Chickenland Ltd and what can your business takeaway?
Facts of the Case
The employee worked as a night cleaner at a restaurant. He was extensively covertly recording his phone conversations with managers and work colleagues to gather evidence which he could then use to claim against his employer to try to negotiate a financial settlement. During his shifts, he was on the lookout for things he could use and ways of furthering his plan. This included:
- Him having a bit of luck when he witnessed an incident in the kitchen where a member of staff accidentally dropped a burger on the floor, picked it up, cooked it, and served it to a customer.
- Re-raising a comment with a colleague to make sure he had it recorded by going back to him and asking whether, when the employee had been going home, the colleague had said to him “see you later love”
- Trying to engineer things whilst recording conversations to see if he could get something he could use. During one of these conversations, the Assistant Manager felt uncomfortable, thought the employee was being deliberately difficult and found him “slithery”.
This was set against a background of the employee’s standard of work (surprisingly?) being poor. When management started to receive complaints, they had an informal conversation with the employee and agreed on additional training, however, his performance did not improve. The Manager and Assistant Manager met with the employee again, he blamed a lack of training and again raised the ‘burger incident’, which had first been brought to their attention via a staff WhatsApp group. The Manager assured him the incident would be investigated and appropriate action is taken. During this meeting, the Manager referred to the employee as “my dear” and “darling.” The employee said he had been overloaded with work on the last shift and couldn’t take a break. This was investigated and found not to be the case.
Later, a meeting was held with all cleaners about the quality of cleaning and tasks and a WhatsApp message was sent with notes of the meeting as a reminder. The employee put his plan into action. He responded by saying the notes from the morning meeting were inaccurate, that he felt that he was being ostracised for raising health and safety concerns and that he was taking the next 3 days off to control his diabetes, which he claimed was affected by “detriments”.
The employee subsequently sent the Assistant Manager a lengthy complaint in which he listed his grievances and stated that he had raised “a protective disclosure”, and suffered “a detriment”, which was unlawful. He concluded his complaint with the following demand: “[a]s an outcome for this serious issue, I am seeking £20,000 in compensation from Nandos as of now to draw a line in the sand under this issue”.
The employee was invited to attend a grievance meeting, however, he was unwilling to attend “because it was going to stress him out and push his blood pressure up, which would adversely affect his diabetic condition”. Instead, he repeated his demand for a pay-off. The employee quickly resigned, his resignation was acknowledged and he was given a further opportunity to have his grievance heard, with reasonable adjustments made to assist him, but he did not respond.
The employee complained to the employment tribunal that he had been subjected to sex / sexual harassment and whistleblowing detriments.
Health and Safety
What did the judge decide?
The employee’s plan failed and he lost his claims.
The judge agreed with the employer that the employee’s claim had been engineered. The judge found that “the [employee] was candid in his evidence that money was indeed all that he wanted. He said he was “entitled” to ask for a negotiated settlement, even if he had been employed only an hour or even 5 minutes. This, in our view, gives away his motives and his plan which he had all along, that is: go there – make yourself a nuisance –record as many conversations as possible – something will be said or done to you– use that to negotiate a payoff”.
The judge found that the employee had acted “vexatiously and unreasonably in bringing these proceedings” but in the circumstances, he nevertheless needed to deal with the claim. The judge found amongst other things that:
- The employee had not been harassed by the use of “darling” etc, for reasons including that it had not had the purpose or effect of creating a hostile, offensive, or degrading environment for him. The judge rejected the employee’s evidence that he was offended by those words.
- The employee had not been subject to detriments because of whistleblowing. It was accepted that he had made a protected disclosure when he raised ‘the burger incident’ as he had a reasonable belief that the disclosed information tended to show that the health or safety of any individual had been, was being, or was likely to be endangered. However, in the circumstances of the case, the judge did not find that the employee believed his disclosure was in the public interest as is required – “what he genuinely believed was that the disclosure would be good enough to later argue that it was a protected disclosure, thus advancing his plan to engineer a complaint and eventually get a pay-off”.
The judge went on to find that even if he was wrong about there not being a protected disclosure, the employee had not been subject to a detriment for ‘blowing the whistle’. He found that actions such as the managers expressing dissatisfaction with the employee’s work and asking him to undertake cleaning tasks that were part of his job and for which he was trained, were nothing to do with him having ‘blown the whistle.’
In the tribunal, it also emerged that the employee hadn’t lasted long in other jobs. He said that after being dismissed he took his former employers to the tribunal and was currently engaged in other tribunal proceedings.
This victory is good news for the employer in this case, however, it will have taken them some time and money to get there, something the employee was hoping the employer would wish to avoid (although by his admission, he may perhaps have “asked for too much”).
This case highlights an area that may be of concern to employers – how to combat individuals looking to use similar tactics. The first place to start is often to take steps to reduce the likelihood of them getting ammunition to use against your business, this can help to reduce your attractiveness as a ‘target’ and make it less likely that they will be successful in their claim/s even if they do try. Steps you may want to consider taking include:
- Ensuring you have appropriate and robust recruitment practices in place – it’s not just once someone is in employment that they might try to ‘catch you out’, remember job applicants can bring discrimination and harassment complaints so make sure your processes are fair and appropriately documented to help you defend any potential claims.
- Make sure your employees are all appropriately trained as this can reduce the likelihood of issues arising, particularly when it comes to discrimination and harassment. It can be all too easy for employees to stray into dangerous territory when it comes to harassment, not necessarily out of any bad intent but a lack of awareness can be a weak spot for businesses – and an opportunity for others. Workplace ‘banter’ going too far is a classic example of when things can go wrong. Been a while since your employees were trained? A refresher may be in order.
- Check that all those with employee management responsibilities know how to spot issues and confidently and appropriately manage common employee matters such as grievances and disciplinaries. It’s also beneficial if they are aware of key employee rights, such as those regarding whistle-blower protection. Bear in mind that forewarned is forearmed – making a mistake could present the very opportunity someone has been waiting for.
If an employee or job applicant does approach you for a ‘pay-off’, you are concerned someone has a hidden agenda’ or you receive a complaint from an employee or job applicant, get in touch before taking any action.
It’s important to handle such situations with care and we can provide advice tailored to your situation and business aims.
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As an arm to your business, we pride ourselves in horizon scanning to identify potential threats early, thus avoiding potentially costly tribunal claims.