Nixon v Ross Coates Solicitors and another
Ms Nixon was employed by Ross Coates Solicitors in Ipswich in a business development role. She was in a relationship with Mr Perrin, one of the solicitors.
In December 2007, Mr Coates organised a Christmas party for all his staff and partners. During the party, Ms Nixon was seen kissing the IT manager, Mr Wright, and at the end of the evening they were seen leaving together and were said to have shared a hotel room.
After the party, Ms Nixon went on holiday. She was ill and, as a result, did not return to work until 29 January 2008. By this time, members of staff had become aware that she was pregnant.
On finding out, the HR manager made a suggestion about the paternity of the baby and, according to Ms Nixon, had also been gossiping and spreading rumours about her pregnancy. Ms Nixon asked to transfer to a different office.
On 5 February, Ms Nixon met with Mr Coates to discuss the situation. Ms Nixon said that she was not prepared to work at Ipswich while the HR manager was still there. She subsequently raised a formal grievance.
In the meantime, Mr Coates wrote to Ms Nixon saying that she had to return to work immediately at Ipswich. She was not prepared to do this. Ms Nixon was not paid for the whole of February and on 15 March she resigned.
Ms Nixon issued employment tribunal proceedings claiming sex and pregnancy discrimination, harassment and constructive dismissal.
The employment tribunal dismissed Ms Nixon’s complaints of sex and pregnancy discrimination, and harassment. However, it upheld her complaint of constructive dismissal. It said that her employer had fundamentally breached the implied term of trust and confidence by insisting that she return to work in Ipswich before investigating her grievance, and terminating her pay when she did not.
However, the tribunal said that there should be a 90% reduction in both the basic and compensatory award because of Ms Nixon’s contributory conduct. As far as the basic award was concerned, the tribunal said that Ms Nixon had acted publicly, foolishly and irresponsibly “in the gaze of” the respondents.
In respect of the compensatory award, the tribunal said that it had taken into account Ms Nixon’s conduct before, and possibly even during and after, the proceedings in what it regarded as a wholly inappropriate attempt to force a compromise of the claim.
The EAT overturned the employment tribunal’s findings on sex and pregnancy discrimination, and harassment. It said that the gossip was connected with pregnancy and it did constitute harassment. It also said that the failure to allow Ms Nixon to transfer to a different office was sex and pregnancy discrimination.
The EAT upheld the tribunal’s decision that Ms Nixon was constructively dismissed. It said that the failure by Mr Coates to deal with Ms Nixon’s grievance and his insistence that she return to the Ipswich office where the atmosphere was unfavourable to her breached the implied term of trust and confidence.
However, the EAT said that the employment tribunal was wrong to reduce compensation by 90%. Ms Nixon’s conduct could be assessed only up to the time of her constructive dismissal. It was not entitled to take into account conduct after her dismissal.
This case is a timely reminder to employers about their legal responsibility for the behaviour of their employees, especially during and after social events. It also highlights the need to ensure grievances are dealt with promptly and swiftly.
The case further demonstrates that the protection of the anti-discrimination legislation is far-reaching and that employers are potentially liable not only for discriminatory comments or actions directly about a relevant protected characteristic, but also comments or actions that are related in some way to the relevant protected characteristic.
Alan Chalmers, partner, DLA Piper
Practical guidance from XpertHR on employee behaviour