Why the case matters
Organisational change is likely to occur when an employee is absent for a long period, whether on sickness or maternity leave. The temptation is for employers to bury their heads in the sand if the person's absence gives rise to direct or indirect changes to the person's role. In the case reported below, a disabled employee was discriminated against when she learnt during sick leave that a colleague had been appointed to her role, and she was also misled about this being 'temporary'.
Where an employee is alleging discrimination and then brings a grievance about a variety of matters, they may resign and claim to have been constructively dismissed. It is always important to deal with grievances in a timely fashion but the risks of not doing so are highlighted here. Where discrimination is also in the mix, the losses involved in breaching someone's contract may far exceed what an employer anticipates if the breach of contract is also found to be discriminatory.
Facts
Ms Wainwright commenced employment with a small business in 2002 as Customer Services Director, reporting to the Managing Director (MD). In that role, she sometimes stood in for the MD. In January 2018, Ms Wainwright's employment transferred to Cennox plc, a much bigger organisation. Her title changed to Head of Installations and she no longer reported to the MD.
In August 2018, Ms Wainwright was diagnosed with cancer (which is presumed to be a disability under the Equality Act 2010) and began receiving treatment. She went on sick leave for several months thereafter, returning to work briefly in 2019 before going off sick again. During her absence, a colleague of hers was offered a role as Head of Installations. Ms Wainwright learned about this from a LinkedIn post in which the individual was congratulated on the new role. Naturally, Ms Wainwright became concerned for her position.
Towards the end of 2018, Ms Wainwright queried how this development affected her own position. Human Resources told Ms Wainwirght that her position would not be affected and in fact was misled into believing the colleague's appointment was temporary. Ms Wainright was provided with a new job description and organisation chart. She indicated that she believed this constituted a demotion, something which her and Cennox failed to agree on.
Ms Wainwright brought a grievance, then resigned following there being a delay in dealing with her grievance. She claimed constructive unfair dismissal and disability discrimination. An Employment Tribunal upheld her claim for disability discrimination, on the basis that she had received unfavourable treatment arising out of her disability (a claim under section 15 of the Equality Act 2010).
In particular, the employment tribunal found that the discrimination arising from disability claim arose from the following treatment:
- appointing a colleague to the permanent role, which affected Mrs Wainwright, without any input from her, and which arose from the disability-related absence
- making an announcement to Mrs Wainwright's team, while not including her, and removing her from the organisational structure
- indicating to Mrs Wainwright that the colleague's appointment was temporary, possibly in a misguided attempt not to upset Mrs Wainright during sick leave.
However, the employment tribunal did not find in her favour in relation to constructive dismissal.
Mrs Wainwright appealed this aspect to the EAT.
Decision
The EAT found that the employment tribunal had erred in its approach to the law and so remitted the case back to an employment tribunal. The tribunal had failed to consider whether the disability discrimination itself constituted a breach of contract, and the extent to which this contributed to Mrs Wainwright's decision to resign.
If the disability discrimination was grounds for constructive dismissal, the tribunal should have considered whether the constructive dismissal was discriminatory. By focusing on Ms Wainwright's dissatisfaction with her job title, and the delay in Cennox's handling of the grievance, the employment tribunal had overlooked that there might have been several causes of Ms Wainwright's resignation (for a dismissal to be discriminatory, it need only be an effective cause of the dismissal).
Comment
Subsequent to the EAT hearing this case, it is reported that an employment tribunal found in Ms Wainwright's favour and awarded her £1.2 million in damages for what it found to be her discriminatory dismissal. The factual scenario of this case is the most interesting aspect as it highlights common pitfalls which apply when employees are absent on a long-term basis. Key takeaways for HR are:
- While organisational change is likely to occur during long-term absences, a person's absence should not be seen as an opportunity to replace them and, in fact, greater care is needed to consider the impact on the absent person.
- Employees should be involved in discussions pertaining to changes to their role and should not be misled in order to protect their feelings.
- In the age of social media, an employee is bound to learn of changes to their role or organization sooner or later, even if these are not communicated directly.
- Where, as here, a recent TUPE transfer means that an employee who was a 'big fish in a small pond' becomes a 'small fish in a big pond', the scope for allegations about demotion or diminished responsibilities is more likely to occur. In such cases, an employer should anticipate this, and communicate changes affecting the person's role with care.
