Discrimination and long-term sickness: keeping employee in the dark about changes to her role cost employer £1.2m

While absent from work having chemotherapy, an employee discovered via LinkedIn that a colleague had been given her job. We consider the recent case of Wainwright v Cennox plc and highlight key lessons for employers managing sickness absence. 

Facts

Ms Wainwright was head of installation at Cennox. She went on long-term sick leave to undergo chemotherapy after she was diagnosed with stage 3 breast cancer. 

A colleague (Ms Cawthorne) stepped into Ms Wainwright's role to ensure business continuity. Three months later Ms Cawthorne announced that she'd been offered a senior position with one of Cennox's competitors and intended to leave. That was a real blow to the business and, to retain her skills and experience, they offered her a permanent position as head of installation. The company assumed that there would be sufficient work for both employees once Ms Wainwright returned as it was restructuring its business. 

The company emailed all members of the installation team about the new structure, but it didn't inform Ms Wainwright. The email included a new organisational chart which had Ms Cawthorne named as head of installations and had overall responsibility for the team. The chart didn't refer to Ms Wainwright at all. 

After discovering her colleague's appointment via LinkedIn, Ms Wainwright contacted Cennox plc to find out what was going on. The HR Director assured her that her role remained unchanged and was ready for her to return to when she was well enough. She also said that Ms Cawthorne was leading the team ‘for now to keep everything running’ which implied that her appointment was temporary. 

Discussions about Ms Wainwright's return to work led to an occupational health assessment, which recommended a phased return. Ms Wainwright was invited to a meeting which she assumed was to discuss this. However, during the meeting she was told that the ‘head of’ job would be split into two and invited to discuss how this could be achieved. 

Ms Wainwright was given a new job description of the split role and new organisation charts. She believed that she'd been demoted due to her cancer diagnosis. She did not agree with having two ‘head of’ roles and asked to return to her previous responsibilities. Her manager explained why the additional role had been created and said she had the same title, the same reporting line and the same rate of pay and therefore hadn't lost any status. The main difference was that the   responsibilities of the role were shared and there was more work because they had attracted new ‘big ticket’ clients. 

She submitted a lengthy grievance. She said she had been lied to and had been blocked from returning to her role. The decision maker didn't uphold her grievance and suggested that she work with her manager to agree how to allocate responsibilities between the two roles. Those discussions didn't meet Ms Wainwright's expectations and she appealed alleging that her grievance had not been dealt with fairly, hadn't been properly investigated and had been misunderstood. She maintained she had been discriminated against. 

The UK Managing Director expressed surprise and disappointment at her appeal (something the tribunal said was ‘not appropriate in the context of a grievance appeal’). Ms Wainwright was then signed off for six weeks with stress. There was disagreement about who should hear her appeal and the only suitable employee identified to do so later became seriously ill, causing a delay in progressing the appeal. 

Ms Wainwright resigned with immediate effect. She said that her grievance hadn't been taken seriouly and that she had been mistreated. The company continued to deal with her appeal, and eventually dismissed it.  

Employment Tribunal 

Ms Wainwright brought several claims. The tribunal rejected her direct discrimination claim, finding that although Cennox had misled her, it was not ‘because of her disability’. Her victimisation claim was also dismissed: while she had carried out protected acts, the tribunal found that either no detriment occurred or, where it did, it was not linked to those acts. Her constructive unfair dismissal claim also failed as the tribunal concluded she resigned due to being unable to secure a director title and status in the new structure, rather than because she had been misled about the restructure. The wrongful dismissal claim was also dismissed, with the tribunal finding no repudiatory breach of contract. 

However, Ms Wainwright was successful in her section 15 claim of discrimination arising from a disability on two grounds. 

• first, that during her sickness absence, a colleague was given her role, and she was wrongly assured this would not affect her position; and
• second, that a restructure had taken place, she had been misled and the company about what had happened in her absence.

Employment Appeal Tribunal

Ms Wainwright successfully appealed to the EAT and the case was remitted back to the tribunal to consider whether the acts of discrimination also amounted to fundamental breaches of contract. 

Employment tribunal…again!

A different tribunal found that Ms Wainwright had been constructively unfairly dismissed, that the dismissal was discriminatory, and that she had also been wrongfully dismissed.

The tribunal examined Ms Wainwright's reasons for resigning and concluded that her resignation letter accurately reflected her state of mind and was caused by the unfavourable treatment she had suffered. Being lied to damaged the implied term of trust and confidence and Cennox didn't have a ‘reasonable and proper cause for its conduct’. The delay to the grievance procedure was the last straw: trust and confidence had ebbed away and Ms Wainwright no longer believed what she was being told about the reasons for the delay in investigating her appeal. 

The tribunal said Ms Wainwright had not affirmed the contract. Seeking clarification and giving the company the chance to put things right did not amount to affirmation. Nor did entering into discussions or raising a grievance about the way she had been treated.  

Therefore, it decided that the acts of discrimination contributed to her resignation and collectively amounted to a repudiatory breach of contract. Her claim of discriminatory unfair dismissal also succeeded.  

Compensation

Ms Wainwright was 42 years old at the time she resigned and had worked for the company for 17 years. She was earning £85,000 per annum and received annual bonuses of between £2-5k. 

She was awarded the following compensation: 

Injury to feelings

The tribunal concluded that the impact on Ms Wainwright amounted to moderate to severe psychiatric damage, warranting an award at the upper end of the top Vento band. At that time the band ranged from £26,000 to £44,000, and she was awarded £40,000.  

Past losses - up to the date of the compensation hearing

She was awarded past losses for five and half years amounting to £399,317.17 which included her reasonable expenses for setting up and running her own business of £37,548.00

Future losses

The tribunal concluded that Ms Wainwright should be compensated for a further six years and this amounted to £294,863.64.

She was also awarded £9,187.50 as a basic award, £900 for loss of statutory rights and £19,235.02 in interest. 

After grossing up for tax, the total compensation awarded was £1,224,861.94. 

Key learning points for employers

An employee who is absent due to long-term sickness does not have an absolute legal right to return to the same job. That said, you must manage long-term sickness absence in a fair and reasonable manner, which includes considering if the employee can return to their original job. If their role is unchanged and they are fit to do it (with or without reasonable adjustments) you should faciliate their return. And that's necessary, even if the person who is acting up is doing a fantastic job and you'd prefer to keep them in post and find something else for the employee to do.  

In this case, the employee was fit to return to her role and was keen to return to her full workload without a lead-in period.   

The tribunal heard evidence that, prior to Ms Wainwright's illness, her workload was excessive and she had to work extremely long hours to get everything done. During her absence the business had restructured her department and the role had rapidly grown and could support two senior employees. The tribunal accepted that the business had a genuine reason to change the role. It wasn't a sham reorganisation and was unrelated to Ms Wainwright's disability.

However, it was a mistake to keep Ms Wainwright in the dark about this - and to mislead her when she questioned what was happening. Her manager may have done this with good intentions (he thought it was ‘insensitive to discuss this with her’ during her illness), but it was ‘clumsy and misguided’ and amounted to less favourable treatment because of her cancer diagnosis. The business could not justify its approach. It had regular catch ups with Ms Wainwright during her absence and it could have explained what was happening during these. 

This ultimately, undermined trust and confidence and led to her resignation, and a very hefty award in her favour.  

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