During a lengthy 12-day hearing in February 2022, several claims of discrimination and victimisation made by solicitor Mark Gaskell against the Ministry of Justice were considered by the Employment Tribunal in Leeds. Mr Gaskell was suspended by the Legal Aid Agency (LAA), an executive agency of the Ministry of Justice in the UK, in 2020 following a “heated WhatsApp exchange with colleagues”, which led to complaints about his conduct. Here we will look at the circumstances that led to the claims by Mr Gaskell of victimisation and discrimination and the reason these were dismissed by the Employment Tribunal.
Background to the claims for victimisation and discrimination
Solicitor Mark Gaskell joined the Legal Aid Board (later renamed the Legal Aid Agency – LAA) in 1985 and became a Contract Advisor in 2015. In November 2019, Mr Gaskell submitted a grievance claim to the LAA on the basis that he had been passed over for promotion. This was rejected by the LAA and later withdrawn by Gaskell, but he did not accept the result and said he would be taking legal action. In February 2020, a Contract Manager at the LAA made a formal complaint against Gaskell regarding “inappropriate behaviour by the claimant in a WhatsApp group discussion in which she said that the claimant made offensive remarks to team members because he didn’t agree with their opinion”.
The Whatsapp conversation was between LAA team members relating to a housing query and a threat of homelessness made by a landlord to a tenant. The transcript of the Whatsapp conversation included the following:
MG: “When I did housing law for a brief period my experience was that the worst threatening landlords didn’t usually oblige by putting things in writing – even the tenancy agreement. D – ask him to go and get himself a black eye…
MG: Anyone can end up homeless. Our role is to help people in this predicament, starting with affording them the dignity of being believed.….
MG: Get on with. I’ve lost interest.”
The conversation then moved on with regard to the issue.
MG: “This is utterly ridiculous. I hope your daughters are never threatened by a nasty landlord. Have either of you ever run a housing case?…”
A colleague responded, “No need to get arsey Mark!!!!! The question is simple is the claim compliant and does the file contain the required evidence the answer here is no”.
The Contract Manager who raised the complaint about Gaskell cited his “aggressive, bullying and unacceptable behaviour”. Further complaints were raised by other Contract Managers in March 2020, which led to an investigation into his conduct. Gaskell threatened to submit the Whatsapp transcript to the Law Society and took a stress-related sickness absence in April 2020. He also made five Employment Tribunal claims for:
1. indirect age discrimination
2. detriment after making a protected disclosure
3. victimisation
4. failure to make reasonable adjustments
5. disability discrimination
Mr Gaskell was suspended by the LAA in May 2020, however, this was lifted in June 2021 on appeal. At this time, his sanction was also reduced to a first written warning because it was acknowledged that Mr Gaskell did not disclose the Whatsapp conversation to the Law Society. Mr Gaskell also expressed regret regarding his conduct and explained this was due to his impaired mental health at the time.
Why were the claims dismissed?
Following the 12-day hearing overseen by Employment Judge Shepherd, the Employment Tribunal concluded that none of the five claims were well-founded, and all were consequently dismissed.
In the judgment, Judge shepherd states, “The claimant has a tendency to fly off the handle and make coruscating comments about people in person and in aggressive and disparaging correspondence. His conduct during the Tribunal hearing was a matter of concern. He was, on occasions, abusive to the respondent’s representative and witnesses”.
It was concluded that Mr Gaskell did not have a long-term substantial medical condition that impacted on his day-to-day living activities at the material time. It also found that Mr Gaskell was not a “disabled person” under the meaning of section 6 of the Equality Act 2010 in 2020 and 2021 when the incidents occurred, and that:
- There was no unfavourable treatment because the claimant was ill
- Gaskell did not establish on the balance of probabilities facts from which the Tribunal could conclude that the LAA had discriminated against him, and, if he did,
- The LAA had shown non-discriminatory reasons for the claimant’s treatment due to his own conduct.
In his concluding remarks, Judge Shepherd stated, “the Tribunal has reached the unanimous decision that the claims of indirect age discrimination, detriment for making a protected disclosure, victimisation, failure to make reasonable adjustments and discrimination arising from disability are not well-founded and are dismissed”.
Final words
In relation to the claim of disability discrimination, this employment tribunal case highlights that relying on historical mental health problems may not necessarily lead to a successful claim. While such factors can be significant in some cases, here, it was shown that Mr Gaskell’s conduct was due to an “acute stress reaction to events at work”. Nevertheless, for law firms and legal service providers, this case should serve as a reminder of the importance of protecting the mental health of legal practitioners. All law firms should have effective risk management processes in place to reduce the potential for acute workplace stress for the benefit of colleagues and clients.
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