Lessons for employers from a £1.2m sickness absence tribunal award

Managing long-term sickness absence can be one of the most challenging areas of employment law. A recent employment tribunal case, Wainwright v Cennox plc, highlights the risks employers face when absences are handled poorly, ultimately resulting in compensation of £1.2 million for constructive dismissal and disability discrimination.

The employee took extended sick leave while undergoing chemotherapy for breast cancer. Under the Equality Act 2010, cancer is automatically classed as a disability. During the employee’s absence, a colleague temporarily took over the role. When that colleague later received a job offer elsewhere, the employer appointed them to the position permanently in an effort to retain them.

The decision was made without consulting the absent employee, who only became aware of the change through LinkedIn. When she questioned the appointment, she was reassured by HR that their own role would remain unaffected. The tribunal later heard that this reassurance had been given to avoid causing additional distress during cancer treatment.

On returning to work, however, the employee was presented with a revised job description and a new organisational structure. She believed that the redistribution of responsibilities amounted to a demotion and that the changes were linked to her cancer diagnosis and prolonged absence.

The employee submitted a formal grievance, arguing that she had been misled during her sick leave and prevented from returning to their original role. The grievance was rejected, and delays in the appeal process ultimately led the employee to resign.

Employment tribunal proceedings followed, with claims for constructive unfair dismissal and disability discrimination which concluded that the employee had been constructively unfairly dismissed and that the dismissal was also discriminatory.

The tribunal found that the decision to resign stemmed directly from the employer’s treatment throughout the sickness absence. Particular weight was given to the assurances that the employee’s role would remain unchanged, despite significant restructuring having taken place. The tribunal concluded that the employee had been misled about the extent of the changes.

It found that this conduct breached the implied term of mutual trust and confidence that exists in every employment contract. The tribunal also rejected the suggestion that the employee had accepted the situation, finding instead that their attempts to seek clarification and pursue the grievance process demonstrated a genuine effort to resolve the issues. Because these events arose solely while the employee was absent due to cancer, the tribunal also concluded that the treatment amounted to disability discrimination.

The case serves as an important reminder that employers should communicate openly with employees on long-term sick leave, particularly when organisational changes could affect their role. While there may have been good intentions in avoiding difficult conversations during treatment, the tribunal described the approach as “clumsy and misguided.”

Should you wish to discuss long term absence, contact 121 HR Solutions at enquiries@121hrsolutions.co.uk.

Lessons for employers from a £1.2m sickness absence tribunal award

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