Jo Millington v Forensic Access Limited

TL:DR over £91,000 compensation for sexual orientation discrimination and unfair dismissal but a long tribunal battle to get it.

We have been working on a case for about 4 years which has recently been the subject of articles in the Times, the Daily Mail, Pink News and elsewhere. Following a long and complicated tribunal case, our Client, Jo Millington, won all her claims and received an employment tribunal award, awarded by Employment Judge Hawksworth, of £91,540.40 comprising:

1. £3,178.50 as a basic award;
2. £46,877.79 for financial losses (of which £5,576.27 was interest);
3. £20,637.95 compensation for injury to feelings (of which £4,387.95 was interest);
4. £20,846.16 in respect of tax payable on the award (‘grossing up’).

As none of the newspaper articles explained the legal and factual issues properly, with the permission of our Client, we now set out the law and facts.

Our Client is a forensic scientist with a distinguished career including lecturing in universities, advising on television programs such as ‘Silent Witness’ and dealing with evidence for court cases. She has about 26 years’ experience and is a world-renowned expert in bloodstain pattern analysis. She started working for the Respondent Company in 2012. At the time of her leaving in 2017 it was called ArroGen Forensics Limited but, following a merger after her employment ended, it became Forensic Access Limited. In 2017 our Client had been instrumental in setting up a new business division for the Company involved in veterinary forensics which was, and should have remained, extremely successful.

However, following a period of what can only be described as bullying behaviour by the then owner of the Company, Joe Arend, our Client brought a grievance against him relating to that behaviour. That behaviour was serious, went to the heart of our Client’s work, experience and professionalism and included utterly unjustified criticism, side-lining, a threatened job change and other inappropriate behaviour. Such behaviour had a natural and understandable negative effect on our Client’s health and sense of wellbeing. Our Client reported the bullying to a senior manager but they were powerless to stop the behaviour and, as such, she professionally and calmly set out her concerns in writing in the form of a grievance. The Company failed to deal properly with that grievance which culminated in a meeting between Mr Arend and our Client on 7 December 2017. Mr Arend, in a bad-tempered way, had left abrupt and bad-tempered voicemails for our Client demanding that she attend a meeting. She did not know what the purpose of the meeting was to be, was not sent a written invitation, there was no agenda, and she was not told whether she had any right to be accompanied to the meeting. Mr Arend was the wrong person to deal with the meeting in any event.

At that meeting Mr Arend sought to deal with our Client’s grievance himself even though it was against him personally. Part of the inappropriate behaviour in that meeting by Mr Arend was his questions and statements about our Client’s sexual orientation. As the tribunal judgement said, he asked her whether she thought he had a problem with her because of her sexuality. He referred to the fact that he is big and used to be a rugby player. Our Client found the question about her sexual orientation upsetting and unprofessional (as it clearly was). She commented that she did not see the relevance of his question, and moved the discussion on to something else. In his evidence, Mr Arend said he understood that she felt embarrassed about being asked this. In the meeting he also used dominant and threatening body language, by leaning back in his chair, folding his arms and slapping the table. He dismissed point by point the concerns that our Client had raised and instead threatened to change her job and challenged her performance, even though her work record was exemplary.

At the conclusion of the meeting, in the light of the behaviour over the previous months and in particular as a result of Mr Arend’s questioning of our Client over her sexual orientation, our Client resigned verbally. She followed this up with a written resignation a few days later. She left without notice and thus was deprived of her notice period pay.

Legal Claims

Our Client then sought legal advice and following the normal ACAS conciliation process we brought the following claims on behalf of our Client:

· unfair dismissal (sections 95 (1) (c) and 98 Employment Rights Act 1996);

· direct sexual orientation discrimination contrary to section 13 of the Equality Act 2010 namely that the decision to resign was also based on the aggravating factor of sexual orientation discrimination; and that the actual statements made in the meeting were also hostile and detrimental; and

· breach of contract/wrongful dismissal.

The Company counter claimed against our Client for its alleged losses incurred in what would have been our Client’s notice period. In so doing it enormously overstated its possible losses. Its counter claim was dismissed by the Tribunal as a result of our Client successfully showing that she was right to resign without notice as a result of the Company’s behaviour.

Law

The legal issues in this case included the following:

Unfair dismissal – whether the Company’s actions amounted to a fundamental breach of the contract of employment that went to the heart of the relationship of employer and employee. Important factors for what constitutes a constructive unfair dismissal are as follows:

1. There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.
2. That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents, which justify his or her leaving.
3. He or she must leave in response to the breach and not for some other, unconnected reason.
4. He or she must not delay too long in terminating the contract in response to the employer’s breach; otherwise he or she may be deemed to have waived the breach and agreed to vary the contract.
5. A final or last straw, not in itself a breach of contract, might result in a breach of the implied term of trust and confidence. The final straw had to be an act in a series whose cumulative effect was to amount to a breach of the implied term. The act did not have to be of the same character as the earlier acts. Its essential quality was that, when taken in conjunction with the earlier acts on which the employee relied, it amounted to a breach of the implied term of trust and confidence. It had to contribute something to that breach, although what it added might be relatively insignificant. There was no need to characterise the final straw as ‘unreasonable’ or ‘blameworthy’ conduct. The only question was whether the final straw was the last in a series of acts or incidents which cumulatively amounted to a repudiation of the contract by the employer.

Some of the issues relied on in respect of constructive dismissal by our Client include the threatened changes to her role. She was the Scientific Director of the Company responsible for work in her specialist field. The Company insisted on changing her role to that of manager with only a small amount of science work. In Land Securities Trillium Ltd v Thornley 2005 WL 2407118 the Tribunal found unfair constructive dismissal of an architect where changes in her contractual duties had the effect of de-skilling her as an architect and amounted to a fundamental breach of contract entitling her to resign. The EAT upheld the decision. That case is a fairly rare example of a professional or managerial employee bringing a constructive dismissal case. This is because in most cases employees faced with a threatened or actual role change are better off staying and fighting than resigning and claiming constructive dismissal.

Other constructive dismissal events included hostile questioning of expenses, of salary and overtime claims, casting aspersions on whether our Client was passing third party fees for her lecturing work onto the Company and in other ways questioning her work and professional ethics. These remarks and questions were totally unjustified and formed part of the breach of trust and confidence that led to the constructive dismissal. There were many other issues alleged, and found by the tribunal, to fundamentally breach our Client’s contract of employment including the failure by the Company to comply with its grievance procedure, the ACAS Code of Practice and/or any fair procedure. Those failings included failing to instruct someone independent to investigate the grievance; failing to investigate; that Mr Arend dealt with the grievance himself despite being personally involved; failing to let our Client know of the reason for the meeting before hand; failing to offer her the right to be accompanied; failing to offer her the right of appeal. We contended that all these points, that were accepted by at least one of the Company’s witnesses, were all breaches of the ACAS Code of Practice.

There are many cases that illustrate the importance of dealing with grievances. For example, in Saint Francis Hospice v. Ms G L Burn 2013 WL 4411452 the EAT upheld the decision of the Tribunal that failure to allow an employee to be accompanied to a meeting breached the implied term of trust and confidence. In Tywyn Primary School Governing Body v Aplin 2019 WL 01338573 the ET found that the unsatisfactory investigation report and the other failings in the disciplinary procedure involved breaches of the implied term of trust and confidence. In Blackburn v Aldi Stores Limited UKEAT/0185/12/JOJ even though Aldi dealt with Mr Blackburn’s grievance it didn’t do so in accordance with its own procedure. As such, the EAT held that Aldi’s failure to follow its own grievance appeal procedure could entitle Mr Blackburn to resign (as constructively dismissed), even though the grievance procedure was non-contractual. The contractual term of mutual trust and confidence is implied into all contracts of employment and is usually expressed as that the employer shall not: “without reasonable or proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. The EAT confirmed in Leeds Dental Team v Rose [2014] IRLR 8 that the test for breach of the implied term is objective; thus the employee is not required to show that the employer intended to damage the relationship: just that it has.

In respect of grievances, to our Company clients and potential clients we say obviously you must offer the employee the chance to appeal against any grievance decision to someone not previously involved and preferably who is more senior than the person who heard the original grievance. Your grievance procedures should be compared with the ACAS Code and, if they do not match its terms, change them. Managers must be trained, their performance monitored and companies must ensure they deal fully and fairly with all aspects of a grievance. In our Client’s recent case the Company’s response to the grievance could hardly have been worse as it completely failed to comply with the ACAS Code of Practice on disciplinary and grievance procedures. At the same time, it illegally discriminated against our Client.

Our Client also brought claims of sexual orientation discrimination (section 13 of the Equality Act 2010). As we said, it was important that the dismissal was found to be sexual orientation discrimination and not just ‘ordinary’ unfair dismissal. In other words, our case was one of discriminatory constructive dismissal. The burden of proof provisions in section 136 of the Equality Act 2010 were important. In this case, the tribunal considered the issue of discriminatory constructive dismissal and particularly whether the discriminatory act caused or materially contributed to our Client’s resignation. It applied the correct test in its reasons, although it is accepted that later in its judgment it seems to have misstated that test (causing the Company’s appeal on that point to the EAT to be unsuccessful). The right test is that the tribunal is required to take a robust approach to determining whether or not a particular act has caused or materially contributed to the resignation, see Clements v Lloyds Banking PLC & ors [2014] UKEAT/0474/13/JOJ at paragraphs 29-30 and McLeary v One Housing Group [20191 2 WLUK 691, at paragraphs 28-30. This is a different test to the “no discrimination whatsoever” test applied when using the burden of proof provisions of section 136.

In this case the Employment Tribunal found that the Company’s conduct at the meeting on 7th December 2017, included discriminatory conduct and that that conduct contributed to our Client’s resignation. The dismissal was, therefore, found to be discriminatory and compensation was awarded on that basis.

The unanimous decision of the tribunal was that our Client was constructively unfairly dismissed and that sexual orientation discrimination occurred and was a material factor in her resignation. In addition, it found that the question about our Client’s sexual orientation did amount to less favourable treatment and that it was made because of her sexual orientation. The complaint of direct sexual orientation discrimination in relation to this comment was, therefore, made out.

At the original hearing in March 2020 the Tribunal did not make an immediate decision. Instead, it ‘reserved’ its decision for a later day. That decision came within about 5 weeks but even then it did not deal with what money to award our Client. Instead, it arranged for a further 2 day ‘remedy’ hearing at which Simon Steen, of this firm, dealt with the calculations and arguments about compensation.

We make the following practical points about tribunals:

• This case took far too long – the dismissal was in December 2017 whereas the final ‘remedy’ judgment was not sent out until 19th July 2021.
• We dealt with the 300 page bundle for this hearing even though the Company was ordered to produce it. The reason for this was that the Company dispensed with its solicitors before the original liability hearing in March 2020. This meant that those lawyers weren’t around to deal with the bundle. We dealt with it entirely electronically via Adobe Acrobat. If you are dealing with an employment tribunal it is absolutely worth having a full version of this program. Two tips we can pass on are to ensure that the electronic numbers on the file match up with the ‘printed’ numbers automatically placed on each page by Adobe. That doesn’t happen if, for example, the page numbering is done before the index is inserted at the start. Secondly, ensure that all pages are printed in portrait. We have noted in these days of video hearings that employment judges and wing members don’t have a printed copy of the bundle and so, as one EJ pointed out, pages in landscape mean they have to turn their laptops sideways to read them. If you have to instruct solicitors to deal with a tribunal and are not using this firm, then consider asking us for detailed instructions on how to prepare and submit documents to the solicitors as you can save considerable time by organising the documents properly before sending them to your solicitors.
• The delay in this case meant that our Client’s losses spanned four tax years. The calculation of loss, therefore, had to include anticipated pay rises in each of those four years, the calculation of all mitigation earnings, in our Client’s new role, the net and gross amounts in the 4 different tax years and ‘grossing up’ in the current tax year. This added significantly to the cost. The figures changed so much that we ended up with multiple spreadsheets but worked out how to print the schedule of loss directly from the spreadsheet.
• We make the following point about grossing up – get it right. The Finlay v Finlay case UKEAT/0260/14/BA & UKEAT/0062/16/BA shows the effect of not doing so. In that case the tribunal decision didn’t deal properly with it, one side asked for a reconsideration of the decision, which took place but still wasn’t correct, the other side asked for a reconsideration of the reconsideration which took place. Unfortunately, that still wasn’t right and the matter ended up in the EAT all at vast expense and delay for the parties. In our Client’s case we took care to explain exactly how we wanted the grossing up to be done and provided an appropriate rate.

Our Client, Jo Millington did not want to lose her job nor to embark on what turned out to be 4 years of litigation in the employment tribunal. In those 4 years, however, she has successfully started a forensic science consultancy business called ‘Millington Hingley Forensic Scientists’ where she and her business partner will continue to provide forensic science services. Their principal expertise is in forensic biology and both are accomplished expert witnesses, having given evidence in UK and international courts. Jo, in particular, is a renowned expert in bloodstain pattern analysis and delivers training to people from all over the world. You may also see her named as Forensic Advisor in the credits of your favourite forensic TV show.

The Times report includes the following:

One of Britain’s leading forensic scientists has won more than £90,000 after her boss asked if she thought he didn’t like her because she was gay. Jo Millington, 46, who studied at the University of Strathclyde and began her career with Lothian and Borders police — was “upset and embarrassed” when Joe Arend brought up her sexuality, an employment tribunal was told. Millington, a blood pattern specialist who earned £47,000, won her claim for sex discrimination and unfair dismissal and has been awarded £91,540. She once appeared in BBC’s 2018 true crime documentary Conviction: Murder in Suburbia examining the conviction of Glyn Razzell for the death of his wife Linda in 2002. The panel found the company guilty of sexual orientation discrimination, constructive dismissal and breach of contract.

Link https://www.thetimes.co.uk/article/leading-forensic-scientist-wins-payout-after-gay-remark-w7r9m5zv0