Stephen Miller

Since their inception, employment tribunals have resolved countless workplace disagreements between colleagues arising from minor misunderstandings through to prolonged campaigns of victimisation.

The many appeals which these claims have generated in the 50 years since tribunals were introduced have provided employer and employee alike with clear guidance on what standards of behaviour are acceptable in the workplace, a concept which naturally changes in time with new generations bringing changing expectations with them to work.

As a result, in addition to supplying helpful and binding precedent, the body of appeal judgments offers a fascinating insight into how quickly attitudes and expectations change.

Everyone recognises that if you keep human beings in close confinement for long enough, it is only a matter of time before there will be a clash of personalities.

If left unattended, these situations can prove intractable and eventually one or other (or sometimes both) warring employees have to be dismissed.

That was the case in a small firm in Truro, Cornwall, where clerical staff shared common office space. Ms T had fallen out with two female colleagues who were said to have thoroughly disapproved of her way of life and who could not as a result accept her as senior to them in the office.

As the judge very delicately put it, the source of the trouble was not so much Ms T’s way of life as the fact that she persisted in introducing it into the office conversation continually. It was observed that she must have been “completely insensitive to the atmosphere”.

Further digging reveals the problem: Ms T already had an illegitimate child but this had not stopped her boasting of her association with a boy almost half her age. As the judge pointed out, it was not surprising that the other young girls objected to this attitude.

It followed, according to the Appeal Court, that the employer was entitled to dismiss Ms T to restore to the office a peaceful atmosphere.

Even allowing for the fact that the dismissal took place in 1974, this really was a remarkable state of affairs.

Whatever has happened since then, most people would agree that our society has become more tolerant and that is reflected in the modern workplace. Although Ms T would not have lost her job today in the same circumstances, clashes of personality persist and they are notoriously difficult to resolve.

The appeal outcomes in two unrelated but remarkably similar cases decided in 2020 suggest that employers will have to think again about the options available when employees fall out. In each case, an employee had contrived to fall out with two team colleagues to such an extent that she could no longer work beside them.

The employer in the first case was DWP, an employer large enough to respond first by removing the employee from the team in question and second, when that was unsuccessful, by changing the office at which she worked.

In the other, the bank in question was able to take advantage of the fact that the named individuals with whom the employee would not work had by coincidence been transferred to other offices.

In each case, that ought to have been the end of the matter.

But Ms B, the DWP employee, was unable to return from sick leave and had to be dismissed; Ms H could not overcome the anxiety she harboured that the colleagues she feared might somehow re-appear to work alongside her and return her to her former state of misery.

Each employer tripped up in the tribunal, and although each was, in comparison to the Truro clerical firm, a far larger employer with multiple offices, that alone does not explain the vastly different outcomes.

Where once a boss was permitted to operate by the axiom “my way or the highway”, today we can expect the tribunal to listen to the employee who insists that there should be another option, a third way.

This is more than merely a sign of how much times and attitudes have changed since the 70s; it reflects a deliberate re-balancing of the relationship of power between employer and employee and the extent to which that is to be welcomed depends entirely on which side of that divide one stands.

Stephen Miller is a partner at Clyde & Co. This article first appeared in The Scotsman.