There are two points of interest for employers arising from the case of Wainwright v Cennox PLC. The first is the importance of clear communication during long term sickness absence. While employers may want to protect absent workers, particularly when they are dealing with serious ill health, misleading them as to what is happening in the workplace can amount to disability discrimination. Secondly, it reinforces that when a resignation is triggered by a final straw that is not of itself discriminatory, that will not mean the resulting constructive dismissal will not be discriminatory.
Background
The claimant was a long serving employee who began a lengthy period of sickness absence following a cancer diagnosis. She provided an efficient handover of her work prior to her absence and remained in regular contact with her employer throughout. During her absence another highly valued employee notified the employer of her intention to resign. To retain this employee, she was offered a permanent role as Head of Installations - that was the claimant's role prior to her absence. The employer believed there would be enough work for two Heads of Installation. None of this was conveyed to the claimant as they did not wish to upset her during her cancer treatment. The claimant learnt of her colleague's appointment via a LinkedIn post.
When the claimant contacted her employer, she was assured (incorrectly) that her role would be unaffected. Prior to her return to work the claimant was given a new job description and organisation chart. The claimant believed she had been demoted, but the employer disagreed. When the claimant raised a grievance, the employer's UK Managing Director conveyed his surprise and disappointment that she was doing so. The claimant was then absent due to stress. There was a delay in progressing her grievance. She also had her email access temporarily removed after her employer became aware that one of their customers had attempted to recruit the claimant. She resigned, citing the grievance delay as the "final straw" on top of the changes to her role. Having been lied to about the permanent nature of her colleague's appointment, she found it difficult to believe the reasons given by her employer for the grievance delay.
Employment tribunal
An employment tribunal dismissed a number of claims brought by the claimant including constructive unfair dismissal and discriminatory dismissal. While the company had misled the claimant, the tribunal found it was not because of her disability (cancer). There was no fundamental breach of contract that she could consider as potentially repudiatory. A claim of discrimination arising from disability was successful. This included having told the claimant that the colleague's appointment was temporary when it was not, which was based on what the tribunal described as a "clumsy and misguided view" that it did not want to upset her during treatment.
Employment Appeal Tribunal
The EAT were of the view that the employment tribunal had not adequately explained why the acts it had found to be discrimination did not amount to repudiatory breaches of contract. It had also failed to analyse those acts in the context of the constructive dismissal claim. The correct analysis that the first employment tribunal should have carried out was to consider (1) whether the discriminatory acts were potentially repudiatory implied breaches of the implied term of mutual trust and confidence; and (2) whether the claimant had been materially influenced in resigning, even if only in part, because of those breaches. The case was remitted back to a differently constituted employment tribunal.
Employment tribunal
When the case returned to the employment tribunal it found that the claimant had been constructively dismissed and that that dismissal was discriminatory. A wrongful dismissal claim was also successful. The impact of the finding that the dismissal was discriminatory meant there was no cap on compensation. The claimant was consequently awarded over £1.2 million, including £40,000 for injury to feelings.
What can employers learn from this
Human nature can lead us to avoid difficult conversations with people while they are unwell. But it is stating the obvious to say that an absent employee should be made aware of workplace changes and should certainly not be actively misled. Honest, clear communication is fundamental to good employee management and is even more important when an employee is absent for any reason. Prioritising good communication will minimise the risk of claims during what may already be an extremely difficult time for an employee.
