The Employment Appeal Tribunal overturned an award of £10,000 for injury to feelings for an act of pregnancy and maternity discrimination in the recent case of Eddie Stobart Ltd v Graham. This was on the basis that the Employment Appeal Tribunal decided that the award was manifestly excessive compared to the accusation against the employer for not dealing with a grievance procedure.
In this case the employee was employed as a Planner and told the employer that she was pregnant in October 2021. Just before her maternity leave, she was informed by the employer that she was at risk of redundancy and began the consultation procedure. The employee had the preferential right to be offered alternative suitable work. The employer however decided that the available position of Transport Shift Manager was not suitable for her. They invited her to be interviewed for the role along with other candidates. She was on maternity leave at the time of the invitation to be interviewed. She was not chosen for the position, and the employer therefore started the redundancy consultation procedure.
The employee decided to raise a formal grievance about the redundancy process. She sent an email to the employer, but the company security firewall blocked the email. She informed the employer about this during her consultation meeting and was told by the employer to send the email again which again was blocked by the security firewall. She was made redundant and again drew to the employer’s attention their failure to recognize her grievance. There was no response from the employer. The employee submitted a claim to the Employment Tribunal for unfair dismissal, pregnancy and maternity discrimination, victimisation and unlawful detriment.
The Employment Tribunal found the Transport Shift Manager position was not suitable for her. It however, did uphold that the employer did not take satisfactory steps to deal with the grievance and this was due to the employee being on maternity leave. This action amounted to unlawful detriment and discrimination. The employee was awarded £10,000 for injury to her feelings.
The case of Vento v Chief Constable of West Yorkshire Police (No 2) provides the Employment Tribunal with guidance on how to make such an award for injury to feelings. The awards fall within three bands. The top band is made when employee suffers a sustained campaign of discrimination. The lower band is awarded for cases of isolated acts of discrimination. In this case the Employment Tribunal awarded the middle band.
The employer appealed the decision to the Employment Appeal Tribunal’s on the basis the award was excessive and that the Employment Tribunal had not provided a clear explanation of the basis of the award. The Employment Appeal Tribunal upheld the appeal on both grounds. The award was reduced to £2000. It acknowledged the award should be based on the employer’s failure to deal with the grievance and distress caused to the employee. It also decided that the award had to be proportionate to the facts.
The significant lesson from this case is that Employment Tribunals must focus on the effect of discrimination on the particular individual. The Employment Appeal Tribunal also emphasized that discrimination and distress to a pregnant employee could result in a higher award when appropriate. Employment Tribunals must decide based on the facts of each case.
If you need any further advice and help, please do not hesitate to contact the Quest HR Advice Line on 01455 852 028.
