A law firm unfairly dismissed a legal secretary who made homophobic comments because of how it ran the disciplinary process, an employment tribunal has ruled.
But Employment Judge Macey said Sheena Rootes’ compensation – the amount of which has still to be determined – should be reduced by 75% to reflect her “culpability”.
The judge found that, in 2021, Ms Rootes said to a receptionist that she would never speak to a lesbian “because it’s a deadly sin” and that she was “okay with gay men, but not gay women”.
Further, Ms Rootes said she would not speak to a partner at the firm because she was a lesbian and would not even look at her because “she’s repulsive”.
These were recorded in a WhatsApp message sent by the receptionist to friends.
The judge said: “These are homophobic views about gay women that the claimant is sharing with a less experienced, relatively new member of staff, at the respondent. They are unpleasant and personal about [the partner]. They are clearly blameworthy.”
But in deciding the reduction in damages, the judge took into account that the comments were not “quite as offensive as the allegations” made in the disciplinary process, some of which the tribunal did not find proven.
Ms Rootes worked for Brighton firm Edward Harte as a legal secretary from March 2003 until October 2021. The tribunal said she received “a traditional upbringing including in relation to the role of women in society”.
In 2013, she was given a written warning for saying that a fee-earner had “a chip on her shoulder, she’s half-caste”.
In 2021, the firm’s disciplinary process had initially upheld eight allegations against Ms Rootes and summarily dismissed her. An appeal to an independent HR consultant, Heidi Rush, brought in by the firm at her request failed but three of the findings were overturned.
The tribunal did not agree with a further three, holding that Ms Rootes had not made a particular offensive comment about the partner and another employee for being lesbians, and did not make a racist comment relating to passengers in a taxi that had been pulled over by the police outside of the firm’s office.
But, in addition to the comments referred to in the WhatsApp message, the tribunal found Ms Rootes said to the receptionist that she was “fine” because she wore skirts and dresses.
“Although again this is [the receptionist’s] word against the claimant’s, there is evidence that the claimant does have a bias against gay women.”
The judge noted that, out of the specific examples of gay friends Ms Rootes had provided, “all but one are gay men, and that the character reference she provided to the disciplinary was from a gay man not a gay woman”.
Both partner Brian Donnan – who ran the disciplinary process – and Ms Rush “held a genuine belief that the claimant was guilty of the misconduct of which she was accused”, the tribunal said.
However, Mr Donnan wrongly took into account various “historical matters” – comments made by, and discussions with, Ms Rootes dating back to 2007, including the 2013 warning – “instead of focusing on the specific allegations that had been made in 2021”. This rendered the investigation “unbalanced and unfair”.
“It was not fair and reasonable to use these historical matters to determine whether the claimant was being honest or dishonest in the disciplinary hearings in October 2021,” the judge said.
The investigations by the office manager and later by Ms Rush were also unfair for not checking inconsistencies in the receptionist’s story.
“Overall, I conclude that the respondent did not carry out a reasonable investigation within the band of reasonable responses and the dismissal, therefore, was substantively unfair.”
Further, the office manager was not a truly independent investigator as Mr Donnan directed her on who to interview. This meant she “did not have a free hand to conduct the investigation as she saw fit. This makes the dismissal procedurally unfair”.
Ms Rush also failed to send Ms Rootes for her response character statements obtained from staff, prior to deciding the outcome of the appeal. This too was procedurally unfair as three of the statements “contained new material that was prejudicial to the claimant”.
Judge Macey said that, though Edward Harte was a small employer, “it is a law firm, it has well-drafted written policies, and an external HR consultant was used for the appeal”.
“A formal disciplinary process was followed, although it was flawed. Within the range of reasonable responses, the respondent’s size and resources does not excuse the substantive and procedural unfairness in this case.”