A software executive has been awarded £89,900 after an employment tribunal ruled that his employer had discriminated against him in association with his wife’s cancer treatment. In this relatively rare case of what is termed ‘associative discrimination’ the tribunal said there was an ‘underlying insensitivity’ from the respondents around her terminal condition.
Mr Graham began working for software company Gravity Supply Chain Solutions as head of business partnerships in 2015, initially at its Hong Kong office, and from April 2021 for its UK entity.
In 2019, Mr Graham’s wife was diagnosed with stage 4 breast cancer, at a time when he and his family were about to relocate to the US to lead the American sales operation. His manager, Graham Parker, the chief executive, suggested Mr Graham return to the UK to support his wife’s treatment.
Associative discrimination
Indirect disability discrimination: lessons from Follows v Nationwide
The return to work and the risk of associative discrimination
He agreed that the claimant could work flexibly to meet the changing needs of his wife’s care and support their son. But, on closer examination, the tribunal found there was no adjustment at all.
The tribunal heard that to manage the demands of multiple time zones, Mr Graham was routinely working from 6:00am often until the early hours of the morning.
Over the summer of 2021, Mrs Graham’s health deteriorated further, and the tribunal heard that “the claimant’s resilience eventually ran out” on 8 August 2021. Mr Graham sent a message to Mr Parker explaining the risk to his health from the lack of sleep, and Mr Parker responded by suggesting he took some time off.
Mr Graham did so, initially taking annual leave and then taking sick leave. The tribunal found that Mr Graham’s access to work emails and computer network was stopped and did not accept this was done to support him. “We find this was all part of the wider plan to impose changes on his employment and remove him from his role, and potentially the business,” said the judgment.
Audio-only video call
About one month into the absence, Parker created a WhatsApp group with Mr Graham and Ms Cai, the HR manager. Mr Parker asked if Mr Graham could join a video call the following day to make him aware of “a couple of things to discuss”.
On the Zoom call the following day, which Mr Graham conducted from a hospital car park, only the claimant and Ms Cai had their cameras on. Mr Parker had only an audio connection. The tribunal panel did not accept this was accidental, but agreed with Mr Graham that it was because Mr Parker knew it would be a difficult conversation.
Mr Parker explained that Gravity was planning to create the role of chief commercial officer, news well received by Mr Graham until it was explained that he would be demoted.
Mr Parker said during the call, according to a transcript: “We need to drop your title out, we need to drop you back down to the level below and adjust that so that you can focus on you, focus on your family and I want to offer you… two options. You can come back full-time or you can come back part-time… There is no pressure for you to come back to the business, from a Gravity perspective. Only you can make that decision based on your personal situation, your health, mental situation etc.”
The new full-time role would have meant an approximately 35% pay cut for Mr Graham but would have restricted his remit to Europe and his hours to 9:00am to 6:30pm.
‘Discretionary’ sick pay
Gravity also reduced Mr Graham’s sick pay to statutory sick pay (SSP), despite his contract saying his first 120 days’ sick leave should be on full pay. Mr Parker claimed full pay was made on a “discretionary basis”.
Mr Graham’s pay was recalculated such that SSP applied, and Ms Cai sent an email explaining the implications of that for his September pay which was reduced by around £3,000.
Disability discrimination
O2 parent settles £160k disability discrimination case
Worker who suffered PTSD after Grenfell wins record £4.6m
Dismissal for absence following allergic reaction was discriminatory
He attempted to return to work on full pay on 1 October, but his access to work emails and the computer network was not reinstated.
In a meeting on 5 October, Mr Parker confirmed Mr Graham’s options were he leaves “being paid six months on garden leave, whatever” or take the reduced role. Mr Graham was directed not to do any work, but to give his decision by 11 October.
On 9 October he raised a grievance about the breach of contract by paying him SSP, unlawful deductions from wages, breaching policy and procedures and a lack of formal consultation by attempting to unilaterally change the terms of his contract through bullying and harassment.
The tribunal found that the grievance was never addressed by Gravity and rejected Mr Parker’s contention that the grievance process was suspended by agreement.
In December, Gravity terminated Mr Graham’s contract telling him he would be on garden leave until May 2022. The email read: “The reason for your dismissal is that you breached the mutual term of trust and confidence by the manner in which you requested 120 days’ sick pay earlier this year. In any event, the need for your current position has now ceased and we therefore believe that your role is now redundant. We have offered you an alternative role on many occasions which you have refused.”
The tribunal found the alleged detriments not materially in dispute. “We have accepted that the claimant did suffer a reduction in full sick pay to SSP; that he was told he would be demoted in pay and status; that his access to the network and emails was unilaterally cut and not restored; and that he was dismissed,” the judgment says.
It found that the respondents’ numerous references to the claimant’s “personal situation” related to Mrs Graham’s deteriorating health.
Underlying insensitivity
The tribunal judgment, in relation to the reduction in pay, status and responsibilities, said: “There is nothing in the respondent’s contentions that the claimant was poorly performing elsewhere that admits the idea of resuming his work, responsibilities or pay at a later date. The only context in this case that could possibly change in the future, in a way that might mean the changes imposed were temporary, is Mrs Graham’s disability. This belies a particular underlying insensitivity in the context of her terminal cancer.”
It continues: “We have come to the conclusion that the comments made and the inferences we can properly draw from them do mean the claimant has proved facts from which we could conclude Mrs Graham’s disability was a material and significant reason for the respondent’s actions. We therefore reject the respondents’ submission that the burden [of proof] has not shifted. The three detriments and the dismissal all flow from this underlying perception about what her disability will mean to the business.”
Mr Graham’s claim of unfair dismissal succeeded against Gravity and the judge ordered compensation of £10,400. The claim of direct disability discrimination also succeeded against Gravity and Mr Parker, the respondents being jointly liable to pay the claimant £66,900. Gravity must also pay for accrued but untaken holiday pay amounting to £12,600.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
