The recent judgment of Islam-Wright v Arts Council England and C Ashcroft provides a useful reminder to employers that sometimes an informal conversation with an employee might be an appropriate first step that might diffuse a minor workplace situation and that jumping straight to a disciplinary hearing might in some circumstances be too draconian and might lead to a constructive unfair dismissal claim.
Facts
Mrs A Islam-Wright worked for the Arts Council England as a Diversity Relationship Manager for two years before she left in 2022 following an investigation into a one-off comment she made criticising gender-critical colleagues.
The comments were prompted by Mrs A Islam-Wright finding out that Arts Council England were involved in awarding a £5m grant to the LGB Alliance – a charity that believes that sex is binary and (for the vast majority of people) determined at conception. Following this grant, a group of employees formed an allyship to raise a collective grievance and request that Arts Council England provided a transgender awareness training in the workplace. Mrs A Islam-Wright (amongst other employees) signed a spreadsheet to indicate her interest of joining this allyship, and she included additional comments which appeared to equate gender critical beliefs to racism.
Without prior warning, Mrs A Islam-Wright was invited to a disciplinary hearing. She later resigned claiming constructive unfair dismissal and vicitmisation, because of the treatment she received during the disciplinary investigation process. She claimed she was subjected to unfair treatment because she exercised her right to support her transgender colleagues.
ET ruling
The Employment Tribunal upheld her unfair dismissal claim. It was agreed that Arts Council England had grounds for viewing Mrs A Islam-Wright’s comments as a cause for concern, however the approach they adopted resulted in the breakdown of the relationship between the parties. The judgment highlights that there was too much focus placed on organisational risk. Instead, a simple conversation between Mrs A Islam-Wright and her line manager in the first instance, could have diffused a comment that was likely to have been simply ill-informed and had no intention to cause upset. Mrs A Islam- Wright had apologised for her comment, so an informal conversation would have been likely to have resolved the issue.
It was also noted that the relationship between the parties was further damaged when the HR partner drew hasty conclusions that Mrs A Islam-Wright was "reluctant to engage with the investigation process". It was found that there was no basis to draw such conclusions. Mrs A Islam-Wright had expressed genuine concerns about her anxieties linked to the investigation process and the ethnic makeup of the investigation panel.
The Employment Tribunal were not convinced by Mrs A Islam-Wright’s claim for victimisation. In its judgment, the tribunal made it clear that it did not consider her comments supporting her transgender colleagues to be a protected act, therefore failing to show she had suffered a detriment because of a protected act.
Comments
The judgment in this case is a useful reminder that employers should think carefully before commencing formal disciplinary action. Sometimes, informal conversations will satisfactorily resolve matters.
Isioma Ugbo