more bad behaviour – this time in an “exemplary” legal services department

Last month it was bad behaviour in the Met. This month (subject to an appeal) it is very bad behaviour in, of all places, the in-house legal department of a county council.

Essex Legal Services has been put forward as a model of a forward looking legal services department. It is an award winner and has been accredited under the Law Society’s Lexcel scheme since 1999, recognising excellence in the provision of legal services. Its clients include other councils, probation trusts, fire and police authorities, schools and academies.

County solicitor Phillip Thomson has been the high profile figurehead of the department and seen as key to its success. He is the president of Lawyers in Local Government.

However a very different picture has emerged at a recent employment tribunal hearing. Evelyne Jarrett, who is black and was a solicitor and team manager at the Council, was made redundant in 2012. She brought employment tribunal proceedings claiming unfair dismissal and race discrimination. There was a fully contested hearing and a reserved judgment was delivered on 19 September. In the judgment Mr Thomson’s credibility as a witness was called into question.

The findings made by the Tribunal are remarkable, all the more so since they are in respect of a public sector local authority employer.

Mr Thomson did make inappropriate references to Hitler, that good practices could be learnt from his management techniques. This aspect to the allegation is upheld.

Any positive reference in the workplace to Hitler has the potential to be highly offensive to any person of ethnic minority origins because of his responsibility for the murder of millions of such people and for pronouncements of belief in the superiority of people from one race over people from another, or any other.

There was a culture of attributing inappropriate nicknames: starting with Mr Thomson as “Piggy Eyes” (an apparent reference to the way he looks at women), the claimant referred to as “Evil Lyn” and Ms Isaacs as “Miss Tease” which she understandably found very offensive.

The initial response of Essex County Council to the reserved judgment was that it was “in the process of defining what its course of action is”. However it went on to say that it was “shocked and disappointed” by the findings and on 14 October it announced that it is going to appeal against the judgment, at the same time reaffirming its commitment to equality and diversity in the workplace. It also asserted that it values and respects all its employees.

This is a bold and some might say foolhardy move by the Council. Appeal hearings are generally not the right place in which to seek to overturn findings of fact made by a court of first instance, such as an employment tribunal. In fact, such findings should not be overturned unless they are so perverse that no reasonable tribunal could have made them. Of course, Essex may have some ingenious arguments on points of law but, unless the factual findings are successfully overturned, it is difficult to see how they will be of any practical assistance.

Prospects of appeals succeeding are considered in what is called the sift process in the Employment Appeal Tribunal when they are considered on paper by an appeal judge. It will be interesting to see whether this appeal makes it past the sift. Alternatively, I would not be overwhelmingly surprised to read that the claim has been settled on terms including confidentiality clauses.