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 the Claimant admitted that they resigned because their medical team and JACS advised them to do so rather than in direct response to alleged acts of their 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 them to discuss the welfare of that employee.
However, the claim of direct discrimination against the Claimant was upheld. The Tribunal determined that one of the Respondents (Respondent C) had attempted to broker a deal with the Claimant in relation to them leaving employment. The difficulty was that the meeting had been proposed as a ‘welfare’ meeting but it soon became clear that Respondent C 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 that Respondent C conducted it. The Tribunal made an award of £2,500 for hurt and distress.
What were the facts?
The Claimant was a long time employee of Respondent A. Unfortunately, the Claimant had suffered from ill health and had taken periods of absence away from work. Following a further period of absence, it appears that Respondent C wished to take matters into their own hands. They organised a meeting with the Claimant on 17 February 2020, which was couched as a ‘welfare meeting’. However, during this meeting, it became clear to the Claimant that Respondent C’s aim did not appear to be the Claimant’s reintegration back into work and steps that could be taken to assist, but the commencement of severance discussions to end the employment of the Claimant 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 the Claimant’s position), the direct discrimination against the Claimant was upheld.
The Tribunal determined that Respondent C treated the Claimant less favourably, that the unfavourable treatment arose as a consequence of the Claimants’s disability and the meeting (and Respondent C’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.
