Here she is boys! Here she is world! Here’s… the Precept weekly blog from Philip Pearson-Batt.
That’s a line from the 1959 musical Gypsy, tweaked with some Precept flair. For those regular readers, you will know that I have recently returned from a solo trip to New York – although it seems like a distant memory now – and the highlight of my trip was seeing Gypsy from about 4 rows back and with 6-time Tony award winner Audra McDonald in the single greatest role in the musical theatre canon – Mama Rose. I don’t think you’ll ever see a bad version of Gypsy so if it’s ever on near you, go and see it. But I also don’t think I will ever see anything better on stage – not that I won’t try of course, I have 4 more West End shows in the diary for the weekend (some belated birthday presents before you start thinking Emma and Rob pay me too much!)
I won’t bore you too much because I’ve already posted about it on my personal LinkedIn and spoken to lots of you about how amazing New York was. But, really, it was amazing!
I was unsure about doing a solo trip initially (“isn’t this a bit sad Philip?”) but when I was there I realised, actually, they’re great. You do what you want, when you want and you get to speak to lots of interesting people and see some amazing things. So, I highly recommend it if you can.
But you’ll never get away from employment law (another Gypsy reference… ahem). And this week I read about a really interesting case that gives us some very helpful guidance on all things injury to feelings. This is the case of Eddie Stobart v Graham.
In this case, the Claimant worked for the Respondent as a Planner. She became pregnant and announced this to the Respondent in October 2021.
A redundancy process was started just before she was due to start her maternity leave. As part of the redundancy process, there was a Transport Shift Manager role available as potential alternative employment. The Claimant felt that this was a suitable alternative role and that she ought to have been given preferential treatment to be offered this suitable alternative vacancy ahead of other employees, in accordance with Regulation 10 of the Maternity Leave Regulations. The Respondent disagreed and said that this wasn’t a suitable alternative role, and the Claimant was made to apply for the Transport Shift Manager role.
Unfortunately, she was not successful in her application and so the redundancy process continued. During this process, the Claimant raised a grievance via email. The Respondent’s firewall blocked this email and it wasn’t received by the intended recipient. The Claimant flagged this at her redundancy consultation meeting and was told she should resend the email. She did and it was again blocked by the Respondent’s firewall. She flagged this again after her dismissal was confirmed but there was no response from the Respondent about this.
The Claimant brought claims for, amongst other things, automatic unfair dismissal, pregnancy and maternity discrimination and victimisation. The Employment Tribunal agreed with the Respondent that the Transport Shift Manager role was not a suitable alternative role and rejected most of the Claimant’s claims on this basis. However, the Tribunal did find that the Respondent’s failure to take steps to deal with the Claimant’s grievance had been materially influenced by the fact she had taken maternity leave. The Tribunal found that this amounted to unlawful detriment and pregnancy and maternity discrimination and awarded the Claimant £10,000 for injury to feelings.
The Respondent appealed this remedy on two grounds: first, that it was excessive and second, that the Tribunal had not given sufficient reason for awarding the £10,000.
The Employment Appeal Tribunal (EAT) upheld the Respondent’s appeal. The EAT found that the proper conclusion here was that the Respondent’s failure to adequately deal with the grievance was limited in both scope and impact. The EAT substituted the Tribunal’s award and instead gave a substantially lower award of £2,000 plus interest.
So, what lessons can we learn from this case then?
- As I say in my witty title, ignoring me (or rather, your employees) is not going to help you in the long run and is likely to result in successful Tribunal claims. If you have an inkling that somebody is trying to raise concerns (which the Respondent plainly did in this case) you need to be proactive in dealing with this. If something is being blocked by a firewall, investigate why that is and at the very least attempt to have it released. If that doesn’t work, see if there are other ways to get the information sent across. Can the employee print it out? Is it something that can be addressed orally?
- The EAT gave a helpful reminder on the sort of things that a Tribunal will take into account when deciding how much to award for injury to feelings. This includes some general principles (which should be supported by evidence): the Claimant’s description of their injury; the duration of the consequences of any injury; the effect on past, current and future work and the effect on the Claimant’s personal life or quality of life.
The EAT also provided really useful guidance for assessing injury to feelings where the Claimant’s evidence on the above points might be lacking including that:
- Overt discrimination is more likely to cause distress and humiliation, potentially increasing the degree of harm;
- Discrimination that occurs in front of colleagues or for others to see may well cause greater harm;
- Disciplinary threats or other acts that create exclusion at work can show an imbalance of power and increase the harm that could be caused;
- In pregnancy and maternity discrimination cases involving an unborn child, there will be additional stress placed on expectant mothers and so the upset is increased.
As you will know, when assessing injury to feelings compensation the Tribunal will use “Vento bands” to determine how much compensation should be awarded. These Vento bands change every year, in April as it so happens. If you haven’t received it already, please get it in touch so we can send you our Precept cheatsheet for rates and figures for the next 12 months. This covers the latest Vento bands and so much more and is an incredibly handy quick reference guide for you.
And as I’m talking about Employment Tribunals now seems like a good time to remind you of our expert litigation team who are offering you the chance to attend a free webinar on all things Employment Tribunal procedure and how to make your life easier. Coming up on 23rd April it’s not one to miss SIGN UP HERE:
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