The Government is proposing to repeal the provision in the Equality Act 2010 that gives employment tribunals the power to make wide recommendations about the employer’s workplace in successful discrimination claims. When employment tribunals exercise this power, what recommendations do they make?
We look at two cases in which employment tribunals recommended that retailer Iceland Foods and healthcare provider Ramsay Health Care take action to tackle discrimination.
HR professional and senior manager joke about disabled employee’s panic attacks in recorded conversation
Crisp v Iceland Foods Ltd ET/1604478/11 & ET/1600000/12
Ms Crisp, a cashier for Iceland Foods, suffered from panic attacks. She became seriously ill and had to take time off work. She sent sick notes to her employer, but they were not all delivered. The company did not have Ms Crisp’s up-to-date address, which meant that she could not be contacted.
Listen to XpertHR senior employment law editor Stephen Simpson explain the power that employment tribunals currently have to make wide recommendations in discrimination cases.
The employer took the decision to dismiss Ms Crisp for unauthorised absence. Ms Crisp, who was unaware of this decision until she contacted the company to enquire why she had not been paid, appealed.
A dispute arose prior to Ms Crisp’s disciplinary appeal hearing about whether or not her husband could accompany her at the hearing. Mr Evans, the claimant’s area manager, told her that her husband could not be a companion because the employer’s policy allowed only work colleagues or union representatives as companions at disciplinary hearings.
Mr Evans and Ms Newbery, the area HR manager, accidentally left a recording of a conversation that they had about the appeal hearing on Ms Crisp’s home answer phone. While they had meant to leave a message, they had left a recorded conversation that appeared to make light of Ms Crisp’s disability and express amusement at how she might react in the appeal hearing.
The appeal hearing went ahead, with Ms Crisp’s chosen companion (by this stage, her mother) required to wait outside. The appeal was upheld and, despite being given the opportunity to move to another store, Ms Crisp told the HR department that she did not want to return to work.
Ms Crisp brought successful employment tribunal claims for constructive dismissal, disability harassment, direct disability discrimination and failure to make reasonable adjustments.
Section 124 of the Equality Act 2010
On 1 October 2010, s.124 of the Equality Act 2010 introduced a wider power for employment tribunals to issue recommendations relating to the employer’s whole workforce. Before that, tribunals could make recommendations in relation to an individual claimant, but not the employer’s wider workforce.
A wider recommendation cannot be enforced, but if the employer fails to comply with it, an employment tribunal can take that failure into account, should a similar complaint subsequently be brought against the same employer.
Employee still in hospital emailed work queries by maternity cover two days after giving birth by caesarean
Stone v Ramsay Health Care UK Operations Ltd ET/1400762/11
Mrs Stone, who was a general hospital manager, became pregnant. The tribunal accepted evidence that the view in this workplace was that it is “unprofessional for senior managers to take more than ordinary maternity leave”. The tribunal noted that the company’s equal opportunities policy did not list “pregnancy and maternity” as a protected characteristic.
Mrs Stone did not manage to speak to Mrs White, her line manager, on her last day before her maternity leave, which started early because of illness. Mrs White, who did not return a call that the claimant left for her, failed to agree arrangements to keep in touch during maternity leave.
Mrs Stone gave birth by caesarean. Two days after the birth, Ms Terblanche, who was covering Mrs Stone’s maternity leave, emailed her with a work query. Mrs Stone, who read the email on her Blackberry from hospital, did not respond immediately. However, by the next week, her “conscience got the better of her” and she answered.
Ms Terblanche continued to email Mrs Stone for advice. While the claimant initially did her best to respond, she stopped checking her work emails after a few weeks.
Ms Terblanche later raised a formal grievance against Mrs Stone that she had been “aggressive” and critical of the employer when she visited the hospital with her baby in March.
During her ordinary maternity leave, Mrs Stone indicated her wish to take additional maternity leave. When the issue of keeping-in-touch days arose, Mrs White suggested that Mrs Stone should attend regional meetings in London or they meet for an off-site keeping-in-touch day. Mrs Stone contacted the HR department, which acknowledged that these suggestions “seemed a little strange”.
Listen to XpertHR senior employment law editor Stephen Simpson give his view on the Government’s proposal to repeal employment tribunals’ power to make wider recommendations.
When Mrs Stone returned to work, she determined to resolve the grievance against her. Mrs White’s response to her queries was that the complaint was “nothing more than hearsay” and that the matter should be dropped.
Mrs Stone raised a grievance that set out the history of her treatment. Mrs Watts, the CEO, conducted an investigation, but did not interview the claimant. Mrs Stone’s grievance was rejected and she was told that an appeal against this decision would not be entertained.
Mrs Stone resigned and successfully claimed pregnancy and maternity discrimination in an employment tribunal claim.