A credit controller who was told by the head of HR that he had been “around since Pontius was a Pilate” has successfully claimed harassment, victimisation, constructive discrimination based dismissal and constructive unfair dismissal at an employment tribunal.
The East London Hearing Centre heard that Mr D Finch, a 66-year-old insurance worker at Clegg Gifford, was compared to the Roman governor – who, according to Christian belief, ordered Jesus’ crucifixion – by his managing director, Mrs S Bellamy, who was also head of HR.
Employment Judge Britton said: “It may be due to the longevity of [Bellamy’s] career, but it became apparent that she has a complete lack of equality or diversity training. The employment tribunal is unanimous that the reference to Pontius Pilate is objectively capable of being offensive. By analogy, it might be deeply offensive to a Christian.”
Finch was a long-standing employee, working at the firm’s Romford office as a credit controller. He had been transferred to the company under TUPE regulations in 2017 when Clegg Gifford acquired the insurance division of Tradex, where Finch previously worked.
The tribunal heard that his job was, in essence, chasing bad debts and that he had “carved that job out for himself and was good at it.”
Finch had serious health conditions, including heart disease, angina, anaemia, kidney disease, hypertension and type 2 diabetes, and was dependent on a range of prescribed medications. The tribunal heard that adjustments had been made to his working hours and approved by management at Tradex.
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In July 2019, several years after the transfer to Clegg Gifford, Ms Banks – who worked in HR and reported to Bellamy – expressed concerns about whether Finch was working his contracted hours.
In early 2020, Finch claimed that Bellamy asked him whether he was “planning on a nap this afternoon” as he had previously fallen asleep in the office. He said this was because his medication and anaemia can make him drowsy. The tribunal also heard that Bellamy made these comments despite suggesting Finch obtain an occupational health report in the same year.
The tribunal found that the comments were “crass” and that “no reasonable manager” of Bellamy’s seniority in the business would have made such a remark, “particularly in the presence of others”.
Around 19 March 2020, when the pandemic hit, Finch went into the office which Bellamy and Banks shared, to explain that he was vulnerable and that he should return home and shield.
The tribunal was informed that Bellamy and Banks misunderstood the term "shielding" and believed that it required the same treatment as a sick day.
Finch then intended to travel to Cyprus for a holiday and to look at buying a house in September or October 2020 but he alleged that a member of the HR team – which the tribunal deduced to be Bellamy – advised him to take his holiday early as he might not “be around” by then.
In an email raising grievance about this, he said the remark was “extremely hurtful” and could be taken to mean that he “might be dead”. He continued that to have a comment made by a HR professional added to the “stress, anxiety and uncertainty” of the pandemic.
The company vehemently disputed that the remark was ever made, but the tribunal found in Finch’s favour and agreed the comment was related to his disability and an act of harassment.
On 6 April, Clegg Gifford notified Finch he would be furloughed and receive 80 per cent of his salary, which he was for the entirety of the month. Finch was asked to complete a survey to gauge how he would feel about returning to the office, and he said he was not comfortable because of his medical conditions.
On 17 July, he received notification that he would be made redundant and a settlement agreement was offered. The letter included an incorrect start date for him, which he raised with Bellamy.
In response, Bellamy sent Finch an email thanking him for pointing out the error and adding that she knew he had “been around since Pontius was a Pilate”. She claimed the comment was made to “lighten the mood” but the tribunal determined that the statement was offensive and related to his age.
Finch did not immediately accept the payout and instead instructed his lawyer to address the firm via letter in August 2020, but the company retracted the settlement offer and asked Finch to report back to work. Finch then resigned.
The tribunal said that its decision was “obvious” because the retraction of a settlement offer amounted to victimisation, and when combined with the harassment by Bellamy, the acts of discrimination were “serious enough to justify [Finch] resigning and treating himself as constructively dismissed”.
A remedy hearing has been scheduled for a later date.
Commenting on the case, Fudia Smartt, partner at Spencer West, said it serves as a “helpful reminder” that a seemingly harmless comment made to lighten the tone of redundancy conversations can be considered harassment.
“Arguing that a comment was made light-heartedly or was banter is rarely successful as a defence and as such care and thought is taken to minimise the risk of claims,” said Smartt.
Alan Lewis, partner at Constantine Law, suggested that managers in particular need to be made aware of their obligations under the Equality Act and the kinds of behaviour that employers will not accept. “It must be made clear that what may appear like casual remarks or banter may be taken as hostile or disrespectful by others,” said Lewis.
People Management has contacted Clegg Gifford for comment. Finch could not be reached.