pregnancy discrimination Archives

In a pregnancy/maternity discrimination case, was the Tribunal’s award of £10,000 for injury to feelings ‘manifestly excessive’ and disproportionate?

The EAT in Eddie Stobart Ltd v Graham said yes it was (full judgement available here )

Facts: The employee, Ms Graham, was employed as a planner at her employer’s (Eddie Stobart Ltd) depot in Scotland. In October 2021, she informed her employer of her pregnancy. In March 2022 (while Ms Graham was still on maternity leave) the employer announced redundancies affecting her role and created new positions. Ms Graham asserted her right to be offered a suitable alternative vacancy under maternity protections, but the employer said the new roles were not suitable. Instead she was asked to apply for a new role via a competitive interview process, but was unsuccessful.

Ms Graham then raised a grievance about the redundancy process, which she tried to send to her employer twice by email. However, these emails were blocked by the employer’s firewall and were not received. The employee also verbally raised her concerns (during consultation meetings) about the way she had been treated and said that she had submitted a grievance. But the employer did not follow up on this.

The employee was dismissed for redundancy and she brought claims for unfair dismissal and pregnancy/maternity discrimination.

Tribunal decision

The Tribunal held that the employer’s failure to further investigate the employee’s concerns amounted to pregnancy/maternity discrimination. It awarded her £10,000 for injury to feelings – which is in the middle Vento band for injury to feelings. (Although it rejected the claim for unfair dismissal, as it agreed that the new roles were not suitable vacancies for the employee).

The employer appealed the injury to feelings award.

EAT decision

The EAT upheld the appeal. It said the award was ‘manifestly excessive’. In particular, the employee had been unable to provide much evidence to show that she had in fact suffered injury to feelings. Although she had described her being ‘shocked’ and ‘upset’, she had provided no evidence of humiliation, prolonged distress, or lasting impact. Also there was no evidence that there had been any adverse effect on her work, or impact on her personal or quality of life. Therefore, this could only have been a lower band Vento case. The EAT substituted an award of £2,000 (plus interest).

The EAT clarified that the purpose of injury to feelings awards is to compensate for the harm caused to the employee, not the manner of the discrimination. Therefore when asking for an injury to feelings award, employees should provide evidence to help tribunals make an informed decision about the level of award.

The EAT confirmed that, when considering such evidence, tribunals should take into account:

The employee’s description of the injury.
How long the employee suffers consequences.
The effect on the employee’s past, current and future work.
The effect on the employee’s personal or quality of life.

That said, the manner of discrimination can sometimes justify inferences about emotional harm (particularly when evidence of injury is limited). For example:

When the discrimination is overt. This increases the chances that it did cause distress and humiliation to the employee. (In this case, the discrimination was not overt. It was caused instead by a procedural failure and the employer had not deliberately ignored Ms Graham’s grievance).
There is a high level of exposure to discrimination. For example, where discrimination occurs in front of other work colleagues there may be greater harm caused.
If the employee has been isolated by the discrimination or suffered disciplinary threats, as this can lead to increased levels of anxiety.

Implications:

This decision is encouraging for employers as it highlights that injury to feelings awards must be proportional and that employees have a responsibility to provide evidence. Awards must reflect the actual harm caused and limited evidence of harm will likely result in a lower award. (Although tribunals can still consider the manner of discrimination in cases where evidence of injury is limited).

The decision also emphasises how important it is for employers to follow up on any concerns of which they are made aware, even if a written grievance has not been received. Particularly when it concerns an employee on maternity leave.

Tag: pregnancy discrimination

Pregnancy Discrimination and Injury to Feelings Award

Pregnancy Discrimination and Injury to Feelings Award

Winter Employment Law Update