Mr Plaistow was employed at HMP Woodhill as a Prison Officer. After his induction, he was asked if he was gay by his custodial supervisor at which he disclosed that he was bisexual. At his revelation, Mr Plaistow alleges he was subject to discrimination and harassment due to his sexuality including having a pink ‘fairy cake’ smeared over his bag. During his employment, Mr Plaistow was suspended and then dismissed due to the use of excessive force when breaking up a prison fight. He brought claims for unfair dismissal and discrimination.
Was Mr Plaistow unfairly dismissed?
Mr B Plaistow v Secretary of State for Justice
Mr Plaistow was employed at HMP Woodhill in Milton Keynes from September 2014 following a transfer from another prison.
From the outset he was asked if he was gay by other Prison Officers based on his haircut and general appearance. At his induction he claimed he was asked by his custodial supervisor whether he was gay, to which he responded he was bisexual. Mr Plaistow alleged that this was the point that the harassment ‘stepped up a notch’. He said that his name badge and work bag were coloured with pink permanent marker and on one occasion the inside of his work bag was smeared with a pink ‘fairy cake’.
He was regularly subjected to verbal abuse from his colleagues, being called ‘gay’, ‘poof’ and after making a formal complaint within the Prison Service, ‘vermin’. In separate incidents he was slapped on the back of the hand in front of his colleagues, threatened with being ‘put on his arse’ and had water squirted at him. He said of these incidents that they made him feel like all his dignity had been taken away.
Mr Plaistow requested to be transferred back to his previous prison, HMP Bullingdon. That request would have been approved by Bullingdon but Mr Plaistow was told that he could not transfer due to staff shortages. He raised a number of grievances throughout 2015 and 2016 and wrote to Andrea Leadsom MP to ask her to intervene.
He was subsequently suspended and dismissed as a result of an incident in 2016 in which he was accused of using unnecessary force on a prisoner while breaking up a fight.
Mr Plaistow brought claims for unfair dismissal, whistleblowing and direct discrimination, harassment and victimisation relying on his sexual orientation as a protected characteristic under the Equality Act 2010.
It was determined by the Employment Tribunal, supported by witness testimony from the prisoner involved and CCTV footage, that unnecessary force was not used. There was a series of errors made during the investigation into the alleged incident and the Employment Tribunal saw the allegations as a pretext to dismiss Mr Plaistow because he had raised grievances about his treatment and written to an MP.
Mr. Plaistow had therefore been unfairly dismissed and his dismissal itself was an act of victimisation. The Employment Tribunal found that he had also suffered a campaign of direct discrimination and harassment on the basis of his sexuality or perceived sexuality whilst at Woodhill.
This case is a clear example of direct discrimination, harassment and victimisation contrary to the provisions of the Equality Act 2010.
Staff had attempted to characterise Mr. Plaistow’s treatment as ‘banter’, a phrase well known to make the blood of employment lawyers run cold! As a general rule, if an employer is facing tribunal claims for discrimination and relying on ‘banter’ as their defence, it is an uphill struggle.
Harassment under the Equality Act 2010 is “unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.” The “purpose or effect” part means that harassment can occur even if the victim takes comments etc not as they were intended, provided it is reasonable for them to do so.
Employers should ensure they have a robust Equal Opportunities policy in place and periodically remind employees what is expected of them.
If you have any queries in relation to harassment and discrimination or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.