Employers should be aware of the risk of damages due to disability discrimination.
The Employment Appeal Tribunal has awarded a former employee £1.2 million in damages in the case Wainwright v Cennox Plc. The action was based on discrimination and constructive dismissal. The Employment Appeal Tribunal overturned the Employment Tribunal’s decision.
The sheer size of the damages award serves as a warning to employers to manage very carefully any employee off with automatic disabilities such as cancer.
The employee had been employed coming up to 17 years at Cennox plc. She was diagnosed with breast cancer and had to have two separate occasions of treatment. Whilst off for the treatment another employee was temporarily appointed to her position as Head of Installation. The employer’s intention was to keep business continuity.
The employee appointed was offered a position by a rival company and the employer in order to keep her made her the permanent Head of Installations. They intended that both employees would share the role as business has increased substantially.
The employee on sick leave saw the promotion announcement on LinkedIn and contacted the employer who reassured her in a misleading way that her role would not be affected by the promotion. The employer omitted to tell the employee that change was permanent for the colleague. The employer argued this was as they did not want to distress her due her illness and her being on sick leave.
The employer later gave the employee a new job description and information about the new company structure. The employee discovered her role had been adjusted and argued this was a demotion. The employee raised a grievance. This procedure was delayed and her line manager told her he was disappointed with her because she was raising a grievance. Due the delays in appointing an investigator the employee resigned.
The employee filed a claim in the Employment Tribunal for constructive dismissal and direct disability discrimination due her cancer.
The Employment Tribunal found in her favour. The employer’s appointment of the permanent position amounted to discrimination and unfavourable treatment due to her cancer. Cancer is an automatic disability under the Equality Act 2010. The employee appointed could have remained a temporary worker until the employee returned from her treatment. The Employment Tribunal did not uphold the constructive dismissal, ordinary unfair dismissal and wrongful dismissal. The employee appealed the decision.
The Employment Appeal Tribunal found the Employment Tribunal had failed to correctly assess the constructive dismissal. This resulted in the Employment Tribunal’s failure to correctly reach a finding that the constructive dismissal could have also amounted to discrimination. The Employment Appeal Tribunal sent the case back to the Employment Tribunal. This resulted in the verdict of constructive dismissal and discriminatory unfair dismissal. The employee was awarded damages for injury to feelings of £40,000.
Employers should now be aware of the legal position of disabled employees and automatic disabilities under the Equality Act 2010. Employees being covered during sick leave by a temporary employee should not be treated unfairly or less favourably.
If you need any further advice and help, please do not hesitate to contact the Quest HR Advice Line on 01455 852028.
