A tartan tourist shop on Edinburgh’s Royal Mile has been ordered to pay £4,748 in damages to a former employee after an employment tribunal found he had been constructively dismissed. The case centred on claims of sexism involving souvenir photo shoots with sword props at the Tartan Weaving Mill, located near Edinburgh Castle.
The shop features an armoury and studio where tourists dress in costumes and pose for photos. Santiago Cubillo, a former sales assistant, was accused by colleagues of sexism for allegedly failing to hand out swords to female customers during photo sessions. Mr Cubillo claimed he had been targeted by a “smear campaign” by a colleague who, he alleged, viewed him as an obstacle in her ambitions to manage the store’s photo studio.
Following the accusations, Mr Cubillo was temporarily transferred to another location while an investigation took place. However, after his grievance was upheld, he was not allowed to return to his original role. Mr Cubillo eventually resigned and later brought a case against his employer, GL Attractions, for constructive dismissal.
The tribunal in Edinburgh ruled in Mr Cubillo’s favour on the constructive dismissal claim, awarding him £4,748 in damages. However, his additional claims of age discrimination, harassment and victimisation were unsuccessful.
Tribunal finds unfair delay and poor communication
Employment Judge Murdo MacLeod found that GL Attractions failed to act promptly to reinstate Mr Cubillo to his role after the investigation. The judge said, “[GL Attractions] made no effort to engage with [Mr Cubillo] about returning to his home store, and as a result, his frustration with that point, and his deep sense of injustice about this and other matters, led, in our judgment, to his resignation.”
The company had argued that rota complications prevented his return, but the tribunal concluded this explanation was not supported by evidence. Judge MacLeod added that GL Attractions breached Mr Cubillo’s employment contract by not arranging his return once his grievance had been substantially upheld.
The tribunal noted that although the employer had intended to act fairly, the delays, poor communication and failure to return Mr Cubillo to his original role after his temporary relocation contributed to the constructive dismissal ruling.
Legal expert explains the importance of timely action
Commenting on the case, Carl De Cicco, employment lawyer at Reed Smith, underlined the importance of employers following clear procedures when handling formal grievances.
“It is always advisable to try and resolve issues informally to begin with. However, when a formal action is initiated, it is important for employers to follow their own internal procedures and to avoid unreasonable delay,” De Cicco told HR review. “In this case, the tribunal was critical of the employer’s delay in responding to the claimant’s grievances, failing to deal with his appeal, and keeping the claimant in the dark about allegations made against him.”
Mr De Cicco added that while sickness absence can affect internal processes, it does not necessarily justify prolonged delays. He added that employers must carry out reasonable, thorough and impartial investigations to assess whether allegations are substantiated.
“Separating the parties during an investigation is often appropriate in bullying and harassment cases,” he said. “However, this needs to be managed carefully to ensure fairness and to avoid either party feeling penalised. Unless agreed otherwise, relocation should only last for as long as reasonably necessary.”
In this case, the employer’s failure to honour its promise of a temporary relocation was a key factor in the ruling.
“Having been told it would be a temporary relocation, failing to move the claimant back to his original role was his employer’s ultimate downfall in this case. This was the element of the claim which entitled the claimant to resign and succeed with his claim of constructive unfair dismissal.”