After a tribunal ruled that he was constructively dismissed, a tartan tourist shop located on Edinburgh’s Royal Mile must pay a former employee PS4,748 as damages. The case was centered on allegations of sexism in relation to souvenir photo shoots using sword props near Edinburgh Castle’s Tartan Weaving Mill.
The shop has an armory and studio, where tourists can dress up in costumes and take photos. Santiago Cubillo was accused of sexism by his former colleagues for not giving swords to women customers during photo shoots. Mr Cubillo said he was the victim of a “smear” campaign by a former colleague who he claimed saw him as a barrier to her ambitions for managing the photo studio at his store.
After the allegations, Mr Cubillo temporarily moved to another location during an investigation. After his grievance had been upheld, Mr Cubillo was not allowed back to his original position. Mr Cubillo resigned eventually and then filed a lawsuit against GL Attractions for constructive dismissal.
The Edinburgh tribunal ruled in favour of Mr Cubillo on his constructive dismissal claim and awarded him damages of PS4,748. His additional claims for age discrimination and harassment were also unsuccessful.
The Tribunal finds that there was a lack of communication and unfair delays
Murdo MacLeod, Employment Judge at GL Attractions, found that GL Attractions did not act quickly to reinstate Mr Cubillo after the investigation. The judge stated, “[GL Attractions] did not make any effort to engage [Mr Cubillo] regarding returning to his store. As a result, Mr Cubillo’s frustration and deep sense of injustice over this and other issues led to his resignation.”
The company claimed that rota issues prevented Mr Cubillo’s return. However, the tribunal found this explanation to be unsupported by evidence. Judge MacLeod also stated that GL Attractions had breached the employment contract of Mr Cubillo by failing to arrange his return after his grievance was upheld.
The tribunal found that, although the employer intended to be fair, the poor communication, delays and failure to return Cubillo to the original position after his temporary relocation all contributed to the constructive termination ruling.
A legal expert explains why timely action is important
Carl De Cicco of Reed Smith’s employment law department commented on the case and stressed the importance for employers to follow clear procedures in handling formal grievances.
It is always best to resolve problems informally first. De Cicco, in an interview with HR review, said that when formal action is taken, employers should follow their internal procedures to avoid unnecessary delays. In this case, De Cicco told HR review that the tribunal was critical of employer’s failure to respond to the grievances of the claimant, to handle his appeal and to keep the claimant unaware about the allegations against him.
De Cicco said that, while absences due to illness can impact internal processes and cause delays, they do not always justify them. He said that employers should conduct thorough, impartial and reasonable investigations to determine whether the allegations are true.
He said that it is sometimes appropriate to separate the parties in cases of bullying or harassment. This must be done with care to ensure fairness, and that neither party feels penalised. If not agreed upon, relocations should last only as long as is reasonable.
In this case the failure of the employer to honor its promise for a temporary move was a major factor in the decision.
The employer was ultimately liable in this case for failing to return the claimant to his original position, despite being told that it would only be a temporary move. It was this element that allowed the claimant the right to resign, and win his constructive unfair dismissal claim.
