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Facts:
The employee worked for the employer (a global IT managed service company) in a senior position as its head of installations. The employee was diagnosed with stage three breast cancer (automatically a disability under the Equality Act 2010) and took sick leave whilst she had treatment. A colleague was appointed to temporarily fill the employee’s post during her absence.
When that colleague was thinking of leaving the employer (to take up a post with a rival organisation) it offered her the post of head of installations on a permanent basis. The employee saw this on LinkedIn when the colleague was congratulated on their new position. The employer produced a new organisational chart, which did not include the employee.
When the employee asked HR about the situation, she was told that the change should not effect her role. However, when the employee returned to work, she was told that her position was to be divided between her and the colleague who had covered her position. This resulted in several key responsibilities being removed from the employee’s role. She saw this as a demotion and raised a grievance; arguing that the offer was ‘regulatory non-compliant’ and had only come about because of her illness and absence.
The employee felt that the response to the grievance did not adequately deal with her complaints and she appealed, but it was dismissed. The employee resigned and brought several Tribunal claims, including discrimination arising from a disability and constructive unfair dismissal.
Tribunal decision
The Tribunal upheld the disability discrimination claim. It said that appointing someone else to the same role as her and misleading her by telling her that the appointment was temporary in nature, amounted to discrimination arising from a disability (as it would not have occurred but for her disability).
However, the Tribunal still found that there was no constructive dismissal (as the employer’s conduct had not amounted to a fundamental breach of contract) and that the dismissal was not discriminatory.
The employee appealed.
EAT decision
The EAT upheld the appeal.
The EAT said the Tribunal should have considered whether the employer’s discriminatory actions (particularly misleading her) amounted to a repudiatory breach of the implied term of mutual trust and confidence. If so, the Tribunal should have looked at whether the employee resigned, at least in part, because of those breaches. If so, her constructive dismissal claim should have succeeded.
The Tribunal should then have considered whether, as a result, her constructive dismissal also amounted to an act of discrimination.
The case was returned to the Tribunal for reconsideration.
The Tribunal upheld the constructive dismissal (and also said that the dismissal was discriminatory) and awarded the employee £1.2 million in compensation for loss of earnings.
Implications:
This is a good reminder that discriminatory treatment can also result in a fundamental breach of contract and therefore constructive unfair dismissal claims. The result being of course, very expensive Tribunal awards!
5.0/5