Constructive unfair dismissal and discrimination award

An employment tribunal has ruled that an office manager was constructively unfairly dismissed and discriminated against on the grounds of sex after she was told she was not allowed to work remotely from her son’s hospital bedside as he underwent treatment for cancer.

The employer’s managing director made the decision that the employee would not be able to fulfil her role remotely and nor was the role able to be carried out on a part time basis, despite having a laptop and phone.  The employee was confident that she would be able to fulfil her role remotely.

When asked to explain his decision, the employer compared the decision to deny the request to work remotely to a rugby player who asked to continue playing after sustaining a head injury, and needed to have the decision taken away from them. He said: “As a caring family man I would not expect my wife or any member of my staff to continue working in such a stressful situation.”

However, the tribunal found that the firm’s refusal was “in stark contrast to the approach taken to male colleagues”, whose requests for remote working were granted on both a short-term basis and more enduring long-term arrangements.

The court also found money played a role in the employer’s decision to deny flexible working. She had explained to the employer that she required to work to pay her mortgage and the MD stated that he “didn’t have an open cheque book”.  She was told to take holiday for the first two weeks of her absence and then go on unpaid leave, and that her job would be there for her when her son was well again.

The business had already engaged someone to take over the employee’s duties and did not want to be in the position of having to pay two people at the same time. The judge found that the claimant suffered considerable injury to feelings compounded by her “knowledge of the treatment of her colleagues, her long and loyal service, the fact that equipment was available and the failure to even trial remote working arrangements”.

The claimant was awarded £5,000 for aggravated damages occasioned by direct sex discrimination and £7,500 for injury to feelings as a result of direct sex discrimination. A further unfair dismissal award was made of £8,186.58; a compensatory award of £350; an additional injury to feelings award of £10,000; £21,886 for financial loss; plus interest, amounting to a total of £59,612.58.

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