Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of Griffiths and Essex County Council, in which the Employment Appeal Tribunal considered whether an employee's loss of earnings flowing from a single act of discrimination that happened two years before the employee's constructive unfair dismissal could be included in the discrimination compensation award. While compensation in unfair dismissal claims is currently capped, this is not the case for discrimination claims, including those where acts of discrimination result in dismissal. In this case, G was a social worker for a local council. There was a complaint made about her work, as a result of which the council undertook an investigation into her practice, but did not tell her it was doing so, and accordingly, did not allow her to participate in it, albeit it did tell G that a complaint had been made. G also had suspicions that an investigation was being carried out because of things that were said to her by colleagues and their behaviour towards her. This caused G to suffer mental health issues which were serious and persistent. The complaints against G were determined to be unfounded and G raised a grievance about how she had been treated, which was not upheld. After her subsequent grievance appeal was rejected and it became clear that those responsible for the complaints would not be sanctioned, G resigned from employment and brought claims of constructive unfair dismissal and indirect disability discrimination. A tribunal upheld G's claims, finding that the council had breached her contract of employment in multiple ways and in respect to the disability discrimination claim, but the council's practice of excluding social workers from investigations into their practice, the PCP, put people suffering with mental health conditions, such as G, at a particular disadvantage. It also found that the counsel applying the PCP to G was serious, damaging to G's mental health and contributed to the demise of the employment relationship. Accordingly, when assessing the compensation due to G, in relation to losses flowing from her dismissal, the tribunal treated those losses as relating to her disability discrimination claim and did not apply the statutory cap. The counsel appealed the decision on remedy on the basis that Ge had not claimed that her dismissal was discriminatory and therefore any loss of earnings for that element of her claim could only be awarded via the unfair dismissal route, and therefore the statutory cap should have been applied. The Employment Appeal Tribunal dismissed the appeal, finding that a discriminatory act short of dismissal can be a causative factor in an employee's eventual job loss, and accordingly, loss of earnings will then flow directly from the discriminatory act. The fact that G had been constructively unfairly dismissed sometime after the discriminatory act did not prevent a tribunal from considering the possibility that her loss of earnings flowed from the earlier discrimination. It noted that it was the tribunal's job to determine the level of compensation that would put Ge back in the position she would have been had the act of discrimination not occurred, and it found that the tribunal had carefully considered whether the discrimination contributed to G's dismissal, ultimately determining it did given the discrimination lasted for an extended period of time. G never recovered from it, and she was still suffering the consequences of it at the time her employment ended. Accordingly, the tribunal had been entitled to find that there was a causal link between the discriminatory act, that is the investigation process, and G's resignation. Look out for further episodes in this series to stay up to date on all things HR and employment law related.