Critic loses Sunday Express employment tribunal despite ‘unfair process’ after judge finds he was freelance

The Sunday Express’s former theatre critic has lost his employment tribunal after he was not judged to have been a Northern and Shell “employee”.

The tribunal also found that Mark Shenton had not been discriminated against because of his sexual orientation.

It was found that the publisher conducted an “unfair process” in terminating Shenton’s work, but this was not a factor because he was not considered an employee.

Shenton lost his Sunday Express work in December 2013 after photographs emerged of him on a United States gay porn website, Bulk Male. Shenton said he was not aware the photographs were on there, explaining that they had been taken privately in 1999.

Shenton, who is gay, was paid a monthly retainer for writing a weekly column in the Sunday Express between April 2002 and December 2013. He also wrote, and continues to write, for other publications, such as The Stage. But he said he considered the Sunday Express his employer and sued for unfair dismissal.

In his claim, Shenton said that he had been told to get free theatre tickets for Sunday Express editor Martin Townsend and Northern and Shell proprietor Richard Desmond. While the tribunal accepted that this “might have been irritating” it “did not find that this amounted to an instruction”.

Shenton also alleged in his claim that Northern and Shell’s opposition to the photographs was hypocritical given its interests in the pornography industry. This was found to be not an “issue” for the judge.

The tribunal found: “The sub-text was that it was ironic that a newspaper within the Northern & Shell group should hold prudish views about pornography, given the parent company's business activities.”

In deciding Shenton was not an employee, the tribunal said that Shenton “certainly had a strong feeling of commitment to [Express Newspapers], which was reciprocated”.

It said: “He was even described as being one of the jewels in the newspaper’s crown.

"However, there was no obligation on Express Newspapers to accept his copy, nor upon [Shenton] to provide it.

“He was free to write for other publications and did so, although Mr Townsend did not want him to write for the Daily Express in order to maintain a separation of ‘the brand’.

"In fact, on one occasion in October 2013 [Shenton] did so, having checked with his editor that there would be no problem, although she did not reply.”

The tribunal said that “most of the findings pointed away from [his] status being an employee for the purposes of the Employment Rights Act 1996”.

“These included that: the claimant had control over his tax affairs; was not paid through pay roll; he was not paid sick pay or holiday pay; he worked from home, using his own equipment; he did not attend staff meetings and was not subject to appraisals nor the disciplinary and grievance procedure; and he described himself as ‘self-employed’ to HMRC.”

The tribunal also had to consider whether Shenton had been discriminated against because of his sexual orientation.

It was judged that Express Newspapers "had proved that the treatment was in no sense because of [Shenton's] sexual orientation". It said: "The reason was a genuine concern – on the part of Mr Townsend in particular – over the newspaper's reputation the context of the readership, other newspapers and magazines."

The tribunal found that Express Newspapers "would have reacted the same way in respect of anyone in [Shenton's] position, in other words, in respect of any person working for the newspaper who appeared in publicly available and equivalently pornographic material, regardless of that person's sexual orientation".

However, the judgment also noted that Townsend and HR worker Julie Fullilove "conducted an unfair process in terminating that contract, in that they withheld information from [Shenton] and they also gave inconsistent accounts of the reason for termination".

On 27 November last year, Shenton said he was informed by Townsend that a “serious allegation had been made” against him and that he must come in for a meeting that Friday (29 November) at 5pm.

Shenton said that he was not given any further explanation for the meeting, which was to be attended by a member of HR staff, and calls he made to Townsend – who knew Shenton suffered from depression – seeking more information were ignored for the 55 hours between the call and the meeting.

In this period he said he sent an email to Townsend saying: “I am obviously deeply concerned about the implications of having an accusation made against me that I am not in a position to answer or defence, since I have no idea what it is.

“I am ready and willing to come over to your offices this afternoon if you are able to see me. Could you alternatively put me in touch with a HR officer I could speak to instead?” He also said he informed arts editor Clair Woodward of his anxiety.

In his statement to the tribunal, Shenton told how he was so upset by the ordeal that he went for a walk “genuinely considering whether I should throw myself into the traffic”.

Shenton was called to another meeting on 4 December when he was dropped by the newspaper in another meeting. In the time between the two meetings, a number of other images of Shenton were found on Bulk Male.

The tribunal judgment said that Townsend’s “mind was pretty much made up that [Shenton] would be dismissed” before the second meeting.

But it added: "He said that, at the same time, he still did not want to lose his theatre critic, but he was aware of the reputational damage if, for example, a rival paper or Private Eye got hold of the story. The tribunal accepted his evidence that this was what was operating most on his mind at this time.”

A Northern and Shell spokesperson said “After going through this robust legal process we are very pleased that the tribunal has found in our favour on all counts.”