Employment Tribunal
Morgan: Looking to future plans
On 26 October, the case brought by ex-copywriter Lea Simpson against her previous employers, Merle Limited, was dismissed by the Employment Tribunal and, in an almost unprecedented decision, Simpson was ordered to pay costs of £5,000 to Merle. Given the unambiguous weight of the ruling, one might have expected to find the Merle chief executive in triumphant mood but it was a pensive and serious John Morgan who was quick to point out the significance of what had taken place for other agencies.“In the media and advertising industry, we tend to think we’re different from the rest of commerce and what might not be seen as appropriate behaviour in another profession is fair game in a more broad-minded environment. As a theory, that might stand up provided individuals have the maturity and common sense to handle the situation. However, as this episode clearly illustrates, anyone who takes a spite against a fellow employee, or against the company itself, has the potential to do great damage.”
In November 2003, Morgan had dismissed Simpson from her job as a copywriter, for incompetence, but she chose to take Merle and her then creative director Paul Simblett to an Employment Tribunal. Her case was based on what she alleged was a previously unreported sexual advance made by Simblett, six months earlier, at an evening reception hosted by a facilities house. In her evidence at the tribunal in May this year, Simpson alleged that Simblett had kissed her ear and put his tongue in her mouth, neither accusation of which appeared in her application to the Employment Tribunal of several months earlier.
“You can draw your own conclusions from that,” said Morgan. “The tribunal did.”
Her case was to build on her refusal of the advances as the reason she was then “victimised” for the following six months until she was dismissed.
“As I said in my evidence,” Morgan went on, “I would have given her notice months before, for a combination of incompetence and calculated lies. Ironically, on the number of occasions when I raised the subject, it was both Paul and John Bedford who defended her as someone who was still learning the business They asked for her to be given more time, and I deferred to their judgement. Not my best decision.”
Morgan’s concern is not restricted to what is said by whom and to whom, but where they are at the time of saying: “Much of the weight placed by Simpson’s solicitor at the tribunal was on whether or not the event at which the alleged incident took place was “work-related”. I think this is where the biggest danger lies for employers who have no official policy on employee behaviour. We’re good at quoting the adage that all an agency’s assets go out of the door at 5.30 (or later in the real world) but it would appear they don’t stop being employees until they are incontrovertibly out of “work” mode. And how that is defined may well end up being a decision made by others.”
Simblett and his writing partner Bedford had been invited by Simpson to a local pub and then on to a “party”. This turned out to be hosted by a facilities house that did not, at that time, deal with agencies. The case was made by Simpson’s solicitor at the tribunal that it was still a work situation and anything that transpired between two employees at such an event was also within the definition of “work-related”.
“So, hours after normal working hours and miles from the place of work, an unsolicited peck on the cheek or a hand on the knee can be construed as sexual harassment,” said Morgan.
“I hate to be a party-pooper but, with the office party season almost upon us, the dangers are self-evident. It is up to every employer to make sure their people know what does and what does not constitute acceptable behaviour.
“She (Simpson) was proved to be a liar but that is of limited consolation. Because the tribunal had to be continued from May until September, only her version of events was on public record for five months. We should remember that Paul’s photograph was published in the tabloids and he was referred to as a “sex pest” (and worse) over allegations made by Simpson about an Ultimo briefing: allegations which were utterly refuted by a witness who was also present, and which were subsequently dismissed out of hand by the tribunal.”
Despite the trauma of being splashed all over the tabloids in a manner that had Morgan consulting his solicitors about the coverage, the outcome has been gratifying for a company that prides itself on team spirit and togetherness. Simpson is left to reflect on the wisdom of going to court with a case that has been ruled as “vengeful” and will now have to find the £5,000 due to Merle.
“I am grateful that we have been awarded the money,” added Morgan. “But, to date, our costs are running close to four times that. Not to mention the huge amount of management and staff time involved in preparing for and presenting our case.
“We were not given a choice in this matter. We had to defend ourselves against what has been proved to be a pack of lies and we can ill afford the thousands it has cost to date. It seems rough justice that someone can make up a story, put others through months of inconvenience (and personal hell for Paul and his family), yet be liable for only a fraction of the costs of defending such an action.
“The limit of an award of expenses is £10,000. The rules governing awards of expenses are drafted in such a way as to make it incredibly difficult for parties to obtain expenses. Because of these rules, many employers settle cases they know they would actually win, simply to avoid the expense of a tribunal hearing. In turn, this fuels the compensation culture that has developed in the UK.
“The Employment Tribunal system provides no real recourse for those who are proved to be wrongly accused. Even rare awards of expenses cannot adequately compensate the wrongly accused for the anxiety and stress that such proceedings cause.
“Of course, there can never be an excuse for sexual victimisation or harassment and everyone so victimised has the right to justice. But mischief-makers have to be discouraged and the financial penalty in this case should act as a warning to any trying to take unfair advantage of an increasingly litigation-literate business environment.”
So, will Merle change its attitude to staff relations and build in protections for the future? Morgan was guarded but sees that change will be inevitable. “They say a rule is the result of a bad experience so it’s possible we will need to change some things. We’re talking to our lawyers with a view to minimum preventative guidance.
“While this has been an unhappy time for us, the staff have been fantastic in their support for the agency and Paul. We have great affection for our people and we all thrive on that relationship. Ultimately, you have to have trust if you want to keep that mutual respect. We’ll lay out a few ground rules and we will rely on people to be sensible. One bad apple shouldn’t be allowed to spoil it for everyone.”
Lea Simpson has since been quoted as stating she intends to appeal the ruling.