Nolan [c] v Voisins Department Store Limited, Voisin and Le Vesconte (Jersey) [r]

[dt_sc_pullquote type=”pullquote5″ align=”left” icon=”yes”]Mixed decision[/dt_sc_pullquote]

 

 

 

What was it about?

Unfair dismissal, wrongful dismissal, direct discrimination, indirect discrimination.

 

What was the outcome?

The claims for unfair dismissal and wrongful dismissal did not succeed as Mr Nolan admitted that he resigned because his medical team and JACS advised him to do so rather than in direct response to alleged acts of his former employer.

In relation to the indirect discrimination claim, this was also unsuccessful – the Tribunal found that there was nothing inherently unreasonable about an employer requiring an employee to meet with it to discuss the welfare of that employee.

However, the claim of direct discrimination against Mr Voisin was upheld. The Tribunal determined that Mr Voisin had attempted to broker a deal with Mr Nolan in relation to him leaving employment. The difficulty was that the meeting had been proposed as a ‘welfare’ meeting but it soon became clear that Mr Voisin had called the meeting to broker a deal as quickly as possible. The Tribunal determined that there was nothing either proportionate, fair or legitimate about the meeting or the circumstances or way Mr Voisin conducted it. The Tribunal made an award of £2,500 for hurt and distress.

 

What were the facts?

Mr Nolan was a long time employee of Voisins Department Store. Unfortunately, Mr Nolan had suffered from ill health and had taken periods of absence away from work. Following a further period of absence, it appears that Mr Voisin wished to take matters into his own hands. He organised a meeting with Mr Nolan on 17 February 2020 which was couched as a ‘welfare meeting’. However, during this meeting, it became clear to Mr Nolan that Mr Voisin’s aim did not appear to be his reintegration back into work and steps that could be taken to assist, but the commencement of severance discussions to end the employment of Mr Nolan at the store.

Whilst the claim of indirect discrimination was not upheld (as there would be no issue with an employer having a ‘welfare type’ meeting with an employee in Mr Nolan’s position), the direct discrimination against Mr Nolan was upheld.

The Tribunal determined that Mr Voisin treated Mr Nolan less favourably, that the unfavourable treatment arose as a consequence of Mr Nolan’s disability and the meeting (and Mr Voisin’s conduct) was not a proportionate means of achieving a legitimate aim.

It was due to this analysis of the meeting that the Tribunal upheld the claim of direct discrimination which, unlike indirect discrimination, does not have a ‘defence’ as such – unless it can be shown to be a proportionate means of achieving a legitimate aim.

Employers can legitimately have conversations with employees about their welfare and can also legitimately open severance discussions with an employee – what we would advise is not mixing those two conversations – that mixing is the root cause of the issues identified in this case.

Find out more about this case.

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