Veitch Penny LLP - Exeter | Crediton, Devon

Case

Martin v Parkam Foods Limited
Employment Appeal Tribunal - (12th June 2006)

Issues

(1) Constructive dismissal
(2) Discrimination on grounds of sexual orientation
(3) Policies and procedures

Facts

Mr Martin had been employed as a Quality Assurance Officer by Parkam Foods in November 2004. In May 2005 he discovered pornographic drawings in black marker pen with his name written next to it, drawn on the walls of the men’s toilets. He made a verbal complaint to his employers. Although the employer removed his name the drawing itself remained. When his name re-appeared next to the drawing, he made a further complaint to his employers. In response, his employers posted a warning notice in the toilet relating to the presence of graffiti. It made no mention of homophobic behaviour.

Mr Martin wrote to his employer regarding the graffiti and asking why no action had been taken. Mr Martin was then suspended by the employer due to the stress he was suffering from and also to enable the organisation to investigate his complaints. As a consequence, Mr Martin resigned.

He made claims at the Employment Tribunal for constructive dismissal and direct discrimination, harassment and victimisation on the grounds of sexual orientation.

Decision

Mr Martin’s claims were successful save the claim of victimisation. The tribunal found the drawing to be offensive and homophobic. Whilst the employing company had a policy dealing with equal opportunities and had demonstrated to the tribunal that it had a diverse workforce, these steps alone were insufficient to ensure that the homophobic treatment would not be repeated in the future. The tribunal noted that the employer should have gone further by properly investigating Mr Martin’s grievances and by taking steps to find the perpetrator. Whilst the employer had put notices in the toilets regarding graffiti, the tribunal said that the notice should have tackled the underlying homophobia in the workplace. In cases where the perpetrator could not be identified, then the firm should have instructed all its employees via further training, team briefings and ad-hoc meetings to leave people in no doubt that homophobia would be treated seriously and that the perpetrators would be at risk of dismissal. The tribunal also criticised the employer for failing to apologise to Mr Martin for the distress and embarrassment caused to him.

Comments

This case highlights the importance of adopting policies and procedures and properly implementing them within a workplace. Whilst this case is not binding on other tribunals, it does provide a useful indicator of the approach a tribunal would take in discrimination cases such as this. The tribunal will expect an employer to take further steps to ensure the complaints are properly addressed and the underlying attitudes are changed.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.