In this article, we bring your attention to a claim that recently determined at Tribunal and found its way into many articles and email inboxes. 

Our title is intended to be humorous and, indeed, many of the articles that you read about this case are likely to sell it as ‘pizza-gate’ or otherwise gloss over the importance of the issues that arose during the claim. We have attempted to do it justice below.

Background

Ms Lewicka was a single mother and commenced employment with Hartwell PLC, a car dealership, on the 6 May 2014. She worked as a part-time receptionist from their Watford site until November 2016 when the site closed for a rebuild. 

From November 2016, Ms Lewicka and her colleagues worked from Hartwell’s Hemel Hempstead site. Whilst at this site, Ms Lewicka raised a grievance on the 9 March 2018 against Mr Mark Benson, Manager at Hartwell PLC. The grievance included a number of accusations:

• Mr Benson’s behaviour
• Her pay
• Her working hours
• Allegations of sex discrimination

Shortly after the grievance, Ms Lewicka and her colleagues moved back to the Watford site where she began experiencing:

• Exclusion from ‘pizza Friday’
• At least two other employees actively ignoring her
• A manager repeatedly putting the phone down on her when Ms Lewicka called

In July 2018, Hartwell decided that Ms Lewicka’s role must be done on a full-time basis and placed her at risk of redundancy on the 8 November 2018.  There was a consultation process but Ms Lewicka was ultimately dismissed on the 2 January 2019. 

Ms Lewicka brought several claims before the Tribunal.

Outcome

Whilst some of her claims were unsuccessful, Ms Lewicka was successful in her claims for:

• Unfair dismissal where she was awarded:
• £7.08 basic award
• £579 for loss of earnings
• £500 for loss of statutory rights
• Victimised, discriminated against (indirectly) on the grounds of sex and received less favourable treatment as a part time worker and awarded £22,000 for injury to feelings.

What is interesting to note is the Tribunal’s explanation for its decision making which we touch on below. 

The tribunal did not tackle the allegations that Ms Lewicka had made against Mr Benson as they were out of time. What it did note was that:

• The outcome of the grievance was a finding of gross misconduct against Mr Benson and that he was issued with a final written warning
• It was these allegations that amounted to a protected act, i.e. a complaint that may fall under the Equality Act 2010 

It was from this protected act that the Tribunal concluded that victimisation had occurred, particularly in relation to being ignored by her colleagues and a manager. The Tribunal found for the Claimant on this allegation as the Respondent had not put forward any evidence to rebut these allegations.

With regards to the exclusion from pizza Friday, Ms Lewicka asserted that at the Hemel Hempstead site, she had been included when the managers went round asking if people wanted pizza, fish and chips or other takeaway, despite the fact she finished at 1pm.  Hartwell argued that she was not included at the Watford site because of this fact.  Further, the witness evidence, on behalf of Hartwell, suggested that it was ad-hoc and informal. 

Whilst the Tribunal accepted that pizza Friday may well be ad-hoc and informal, it concluded that Ms Lewicka had been left out of pizza Friday on the basis of her sex and part-time working arrangement  (indirectly) and that it was an act of victimisation, arising from the protected act. Further, that the name itself indicated that pizza Friday was a regular occurrence.

Turning to the change of Ms Lewicka’s role from part-time to full-time and ultimately her dismissal, the Tribunal found that:

• There was a closed minded assessment of these requirements and referred to the lack of evidence from Hartwell to suggest that the role must be done on a full-time basis
• There was a failure to consider Ms Lewicka’s caring responsibilities as a single mother
• No offers of alternative work had been put forward during the redundancy process
• Ms Lewicka was the only part-time employee placed in the pool of ‘at risk’ employees.  Instead, she had been told that had she gone full-time she could have ‘bumped’ other full-time employees 

The Tribunal determined, ultimately, that this was an unfair dismissal and motivated by the protected act.

Thoughts

What is really interesting about this case is that:

1. From our perspective, there must have been an issue with confidentiality. From the Judgment, given by the Tribunal, it is unclear as to how Ms Lewicka’s colleagues were aware that she raised the grievance about Mr Benson. Such issues are supposed to be confidential and yet there is clearly a change in attitude towards her, shortly after raising the grievance.
2. There appears to be a lack of understanding and/or training of Hartwell’s employees on discrimination and how it can manifest in the workplace, such as victimisation.  It is self-evident from the facts of this case that Hartwell’s other employees, in victimising Ms Lewicka, did not understand that this was unacceptable behaviour and, through their conduct, landed the company with a hefty judgment against them, not to mention the bad publicity that has come with it.
3. Hartwell and its employees did not appear to understand what was required for a redundancy situation. The Tribunal goes so far to say at paragraph 43 of the Judgment that Hartwell had the opportunity at an earlier date to remove Ms Lewicka “under the guise of redundancy”.  However, they failed to provide evidence “to support the assertion that full-time positions were needed”.
4. Following on from point 3, the Tribunal found against Hartwell on the points of pizza Friday and the colleagues ignoring her based on the Tribunal’s preference of Ms Lewicka’s evidence. Hartwell appear to have failed to supply evidence to dislodge the Tribunal from preferring Ms Lewicka’s version of events.
5. Claims for indirect discrimination can be defended where the Respondent is able to offer an objective justification. The Tribunal state at paragraph 64 of the Judgment that “the less favourable treatment cannot be justified because … there is no evidence to support the statement…”.  Therefore, had Hartwell had good reason to turn the role into a full-time one, then they could have potentially reduced the number of claims found against them.
6. The Tribunal note the bitterness of one of the witness statements that questions the sincerity of Ms Lewicka’s grievance, despite the finding that Mr Benson had committed the acts complained of.

This case, whilst having a silly title, is a sombre reminder that we should always encourage and actively engage in training on equality and diversity. The author recently had the honour of giving a short presentation of this case to the Northeast Chamber of Commerce’s members. Amongst the other comments made, one of the attendees stated that it was a reminder always to be kind to people which is a sentiment that we share.

It is also very easy to brush this sort of behaviour under the carpet and suggest it is a one off.  However, since this claim has been determined, we have received two potential new enquiries with circumstances not dissimilar to these wherein women have raised grievances, following sexual harassment and then been subjected to victimisation for speaking out.

Your business may run very well but, as we see in this case, it is important to have constant training, policies and procedures in place to deal with these types of situations.  Ultimately, if you are pursued for claims, whether you win or lose will turn on the facts and details that led to decisions. 

https://www.gov.uk/employment-tribunal-decisions/mrs-m-lewicka-v-hartwell-plc-3314194-2019