£1.2 Million awarded for discrimination arising from a disability and constructive dismissal claims

Overview

A recent appeal case has resulted in a £1.2 million award for disability discrimination and constructive dismissal.

This serves as a helpful reminder to employers of the importance of communication and consultation around changes affecting employees who are absent from work.The case also highlights the need to handle grievances properly and expeditiously, particularly where an employee is disabled under the Equality Act 2010.

Case Summary: Wainwright v Cennox Ltd

Ms Wainright, formerly Head of Installations at Cennox Ltd, was diagnosed with cancer in August 2018 and went on sick leave to undergo treatment. During her absence:

• A colleague was appointed to cover her role temporarily but was later offered a permanent position in that role.
• Ms Wainright only found this out via LinkedIn, not via direct communication from her employer. On querying this with HR, Ms Wainright was assured that her role would be unaffected.
• HR omitted to mention that the colleague’s cover was a permanent role.Ms Wainright was later provided with a new job description and organisation chart, which she believed indicated a demotion.

On returning to work, she submitted a grievance. However, due to delays in the grievance process, she resigned, also citing that she was unhappy with her treatment.

Ms Wainright brought a claim before the Employment Tribunal (ET).

Employment Tribunal (ET) Findings

The ET ruled:

• Appointing someone else to the same role as Ms Wainright whilst she was on sick leave, and misleading her as to the nature of the colleague’s appointment, amounted to discrimination arising from a disability.
• However, the ET rejected her constructive unfair dismissal claim, finding that the employer’s conduct had not amounted to a fundamental breach of contract.
• The ET did not find that the dismissal itself was discriminatory.

Employment Appeal Tribunal (EAT) Ruling

The Claimant appealed the decision, and the EAT found that there had been errors in the ET’s approach. In particular:

• The Tribunal had failed to analyse whether the acts of discrimination amounted to a fundamental breach of contract, and whether this contributed to her decision to resign. If so, then her constructive dismissal claim should have succeeded.
• The Tribunal should have also considered whether as a result, the constructive dismissal itself also amounted to an act of discrimination.
• The case was remitted back to the ET for reconsideration, which ultimately resulted in Ms Wainright receiving £1.2 million in compensation.

HR and Legal Takeaways for Employers

1. Cancer is an Automatic Disability

Under the Equality Act 2010, cancer is automatically considered a disability from the point of diagnosis, even where the effects are not yet having an impact on day-to-day activities. Employers should be aware of those disabilities which are deemed automatically protected.

2. Communication Failures May Count as Discrimination

As noted from this case, a failure to communicate transparently during the employee’s sickness absence can amount to discrimination arising from a disability. Where employees are absent due to sickness, employers should:

• Be clear and transparent about any changes to their role or team structure.
• Consult affected employees where necessary before making permanent adjustments.

3. Handle Grievances Promptly

In this case, Ms Wainright was prompted to resign partly due to the delay in handling her grievance. Employers in receipt of a grievance shouldensure this is addressed swiftly, and any delays are explained clearly. It is crucial to adhere to your own internal policies in terms of response times.

4. Constructive dismissal can be linked to discrimination

The EAT reiterated that discriminatory treatment can result in a fundamental breach of contract and support a constructive dismissal claim, which employers should be mindful of.

5. Tribunal Awards Can Carry High Compensation

The award in this case highlights the significant financial exposure where employers fall short.Employers should ensure that they invest in training for management and employees on Diversity, Equity, and Inclusion to ensure compliance with the Equality Act 2010.

How Napthens Can Support in Tribunals

We act on behalf of employers both on an ad-hoc basis and through insurance coverage on our flexible retained services. Having insurance in place ensures that you are protected as much as possible from the costs of tribunal claims.

For more details, visit our employment law and employment tribunal service pages.

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