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A former employee of Cennox plc has recently been awarded over £1.2 million in damages for a discrimination and constructive dismissal claim related to her employer’s actions following her cancer diagnosis. The Employment Appeal Tribunal recently published the judgment of Ms A Wainwright v Cennox Plc: [2023] EAT 101 which describes why the original decision finding against the claims was overturned and the claims were sent back to the Employment Tribunal.
The size of the award acts as a clear caution to employers when it comes to managing the sick leave of employees with cancer or any other automatic disabilities.
Background
The Claimant (Wainwright) had worked at the Respondent company (Cennox plc) for almost 17 years, before being diagnosed with breast cancer and going on sick leave on two separate occasions to receive treatment. Whilst she was on sick leave, a colleague temporarily stepped in to Wainright’s role as Head of Installation to ensure business continuity.
The temporary replacement was then offered another job at a rival company and informed the Respondent of the job offer. In an attempt to retain her the Respondent offered the Claimant’s colleague a permanent position as Head of Installations, intending that the Claimant could share the role upon her return as the role’s heavy workload could benefit from two individuals managing the expanding job.
The Claimant only became aware of this whilst on sick leave after reading a post on Linkedin, congratulating the colleague on securing the position. The Claimant quickly contacted the Respondent who attempted to reassure her by misleading her in confirming that the Claimant’s role would be unaffected as a result. The Respondent failed to disclose to the Claimant that the colleague had been permanently appointed to Head of Installations, which the Respondent argued was out of concern for the Claimant, not wanting to distress her further whilst she was on sick leave.
Following this, the Respondent shared a new job description and a new company structure with the Claimant, which included organisational charts setting out the updated responsibilities for both head of installation roles. The Claimant saw the adjusted role and fewer responsibilities as a demotion and raised a grievance. Her line manager expressed disappointment over her raising of the grievance – a reaction that was criticised by the Employment Tribunal. There were delays processing the grievance – partially due to the Claimant’s preference over investigator, and the chosen investigator’s sudden and severe illness – and during that time the Claimant resigned.
The Claimant then brought a series of claims in the Employment Tribunal including constructive dismissal and direct discrimination for the unfair treatment she received following her cancer diagnosis.
Employment Tribunal Judgement
The Employment Tribunal found that the Respondent’s appointment of a permanent replacement did constitute discrimination and unfavourable treatment which would not have occurred if the Claimant had not been off work receiving treatment for breast cancer. Cancer is an automatic disability, and therefore the Claimant’s sick leave was considered to be “something arising from a disability” which is protected under the Equality Act 2010.
The Tribunal clarified how that the Respondent actions in appointing a permanent replacement was not a proportionate means for achieving a legitimate aim, and the replacement could have remained a temporary position until she returned.
However, the Tribunal did not find that the Claimant had been constructively dismissed, nor that the dismissal was discriminatory and dismissed the claims alongside ordinary unfair dismissal and wrongful dismissal.
The Claimant appealed.
The Employment Appeal Tribunal
The Employment Appeal Tribunal found that the Tribunal erred when assessing whether the discriminatory actions related to the Respondent’s treatment of the Claimant’s role whilst she was off sick with cancer, breached the duty of trust and confidence between employee and employer. The EAT confirmed that this should have been key to reviewing the reasons the Claimant resigned, as if the reasons for the resignation were related to those breaches, constructive dismissal may have been made out.
The EAT explained that the Tribunal’s failure to correctly assess whether constructive dismissal had occurred, resulted in a failure to review whether any constructive dismissal found could have also amounted to discrimination.
The EAT sent the case back to the Tribunal, which resulted in the recent finding of constructive dismissal and discriminatory unfair dismissal, awarding the Claimant an injury to feelings of £40,000 (upper Vento band).
Practical learnings for employers
• Employers must always be aware of the extent of protections around disabilities, and especially cancer which is automatically a disability, and remains so for the employee’s life (even if they go into remission)
• Where replacements are required to manage the workload of a disabled employee who is off sick, extra care should be given around the arrangement with the replacement and how this is communicated to the disabled employee to ensure the risks associated with misleading an employee or treating them unfavourably are minimised.
If you’d like to discuss any of the issues raised in this article, please contact Sonia Bungaroo-Valdes.