Hello to you. It feels like ages since I’ve done one of these, but it is time for me (Philip Pearson-Batt) to provide you with an update on all things Pearson-Batt and Employment law.
It seems that summer is a busy time in my household.
Key highlights so far have been:
- Our recent trip to Italy (see my LinkedIn post for photos). Whilst it seems like a distant memory now, we had an absolutely fantastic, jam-packed week exploring Northern Italy – Verona, Milan, Lake Como and Venice. By the end of the first day we had already had pasta, pizza, gelato, an aperitivo and we’d done 25,000 steps, rounded off with an evening at the opera. But our one true love of the trip was Venice and we are already planning a return trip for after our big trip to Japan next year.
- My recent trip to London to see Romeo & Juliet (with Spiderman aka Tom Holland as Romeo) and Kiss Me Kate (a proper big Hollywood-glamour-style musical. I think tap dancing should be incorporated into more aspects of life really, don’t you?) I am calling this year the summer of Romeo & Juliet actually because we saw Juliet’s balcony in Verona, I saw the play this past weekend and I will be amongst thousands of Swifties singing (screeching) about Romeo & Juliet come August. Shout out to my good friend Kim, who is also Precept’s #1 fan on all things LinkedIn.
- Benji falling in love with Stanley the Seal (a toy. Don’t ask. Yes mate, you’ve brought us Stanley 10 times today, he is very nice but I’m trying to draft this settlement agreement so if you could just go and cuddle him elsewhere, that’d be great).
- Endless amounts of tennis (my bet is on Jasmine Paolini for the Wimbledon win). Speaking of, I am desperate to get my husband into a Wimbledon match. We enter the ballot every year and never hear a peep. If anybody knows of a way to secure tickets, I would owe them a massive debt.
And I guess, it’s no different in the field of employment law and HR is it? Only, less tap dancing maybe. Things are busy and with the recent election of the Labour government and their “new deal for working people”, it looks like things are just going to get busier (Alex covered this excellently in a recent blog Should businesses be worried about a labour government and we will, of course, keep you updated as we progress.)
I wanted to take a minute out of this busy time to focus on an issue that I’m starting to find is cropping up more and more in the advice I’m giving: claims for “associative discrimination”.
In a nutshell, an “associative discrimination” claim is a claim brought by an employee who says they have been treated less favourably because they are associated with somebody who has a particular protected characteristic.
There’s a recent Tribunal case that gives us a perfect example of this: Graham v Gravity Supply Chain Solutions Ltd & Parker.
In this case, the Claimant was employed as a Software Executive by the Respondent, originally working in Hong Kong but relocating to the UK in 2021. In 2019, very sadly, the Claimant’s wife was diagnosed with stage 4 cancer. On the face of it, the Claimant’s manager had agreed that he could work “flexibly” to meet the changing needs of his family. When the tribunal actually looked at this, however, no adjustments were found at all. The Claimant was regularly required to work from 6:00am until the early hours of the following morning.
Eventually things became too much for the Claimant and it was agreed he’d take some leave, initially annual leave and then sick leave. At that time, the Respondent cut his access to work emails and their computer network. The Respondent tried to argue this was all done to support the Claimant but the tribunal didn’t accept that was the case – it found that the cutting of access was part of a wider plan to remove the Claimant from his role.
Shortly into his period of leave, the Claimant was informed that the Respondent would be demoting him so that he could focus on himself and his family. This came with a significant pay cut and the Claimant’s sick pay was also reduced to SSP, despite his contract of employment saying the first 120 days of sickness absence should be on full pay. The Claimant tried to raise a grievance, which was not addressed and was ultimately told he had two choices: take the demotion or leave. He was eventually dismissed and the email confirming this stated that the reason was because of the way in which he had asked for 120 days’ sick pay and that his role was no longer needed.
The Claimant brought claims for unfair dismissal and associative discrimination (which is usually brought under section 13 of the Equality Act as a direct discrimination claim).
The claims were upheld and one thing that the Tribunal highlighted on a number of occasions was the underlying insensitivity that the Respondent displayed towards the Claimant and, in particular, his wife’s illness (which constituted a disability under the EqA 2010). It was felt by the Tribunal that the underlying perception of the Claimant’s wife’s disability and how it would impact the business resulted in the detriments suffered by the Claimant and his dismissal. In fact, the Tribunal found that the Respondent’s decisions were materially influenced by this underlying insensitivity. The Claimant’s claims succeeded and he was awarded £89,000 in total by the Tribunal.
So big consequences if you get this wrong. It’s probably a good idea for me to talk you through how to get things right isn’t it?
The big thing here is to try and create an inclusive and supporting work environment where staff feel able to have open and honest discussions about seriousness illnesses – whether their own or that of a loved one. How do you do this?
Well, one is to look at educating staff on how to handle sensitive conversations and making sure they are clear on where support is available (whether internally or externally).
Learn from the mistakes of the Respondent in this case! If you’re offering something like flexible working, make sure it actually happens in reality. False promises are the friend of nobody. They break down the working relationship and can lead to distinct claims in the employment tribunal. Take time to discuss with staff what is happening, if they feel able to, and what support they might need from you as their employer. Remember, you haven’t got to change every little thing, it will be about working together to try and come to suitable arrangements that balance your needs and their needs.
The other key thing to take away from this case, which can be applied to any situation where somebody is associated with a person who has a protected characteristic is to think about what impact this has on their employment. Having an awareness of this in decision making or formal processes is going to allow you to tackle it head on, offering support and making sure you’re not falling foul of potentially discriminating.
Look, I get it. These sort of situations can often be difficult to deal with, given the sensitivity of the issues involved. If you need support and guidance on how to handle this sort of situation then please please please give Precept a call. We can make something that is often incredibly difficult that little bit easier and that is going to be in everybody’s best interests.
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