Associative discrimination means software executive is awarded £90k

After his employer had discriminated against him regarding his wife's treatment for cancer, a software executive was awarded £89,900 when an employment tribunal ruled in his favour.

The tribunal noted that in the relatively rare case of what is called ‘associative discrimination’, there was an underlying insensibility from the respondents when considering the terminal condition of the claimant’s wife.

Mr Graham began working with software company Gravity Supply Chain Solutions in 2015, where his role was head of business partnerships. He was initially based at the Hong Kong office. From April 2021 he worked at the UK office.

In 2019, at the time when Mr Graham and his family were about to relocate to the US where he would lead the American Sales Operation, his wife was diagnosed with stage 4 breast cancer. His manager Mr Graham Parker, who was chief executive at that time, suggested that Mr Graham return to the UK to support his wife in her treatment.

Mr Parker agreed that the claimant could work flexible hours so that he could help with his wife's care, as well as support their son. However, on closer examination the tribunal did not find any adjustment had been made.

Because he had to manage the demands of several different time zones, the claimant would often start work at 6am and finish in the early hours of the morning.

During the summer of 2021 his wife's health deteriorated further and Mr Graham told the tribunal that his own resilience eventually ran out. On August 8th 2021 he sent a message to Mr Parker explaining that he felt his health was at risk from lack of sleep. Mr Parker responded by telling him to take some time off.

The claimant did this, initially taking his annual leave and then taking sick leave. At that point he found that his access to work emails and computer network was stopped. He did not accept that this had been done to support him.

The tribunal ruled that they found this to be a wider plan to impose changes on the claimant and to eventually remove him from not only his role but also from the business.

After about a month of absence Mr Parker made a video call to Mr Graham along with Ms Cai, the HR manager. Mr Graham and Ms Cai had their cameras, but Mr Parker did not. The tribunal agreed that his camera was off because it was going to be a ‘difficult conversation.’

Mr Graham learned that there was to be a new role of chief commercial officer and this would mean that he would effectively be demoted.

The claimant was told that the company needed to drop him down to the level below so that he could focus on himself and his family. He was offered two options, namely to come back full time or return as part time.

The new full time role would mean a 35% pay cut and would also restrict him remit to Europe. His hours would be 9am to 6.30pm.

The company further reduced Mr Graham's sick pay to statutory sick pay (SSP) even though his contract stated that his first 120 days sick leave should be full pay. Mr Parker told the claimant that full pay was afforded on a ‘discretionary basis.’

When the claimant worked out all the figures he realised that he would be losing around £3,000 per month. He attempted to return to work on full oy on October 1st but found that his access to emails and the computer network had not been reinstated.

A meeting with the claimant was held on October 5th where he was told that he could either leave, and be paid for six months or take the reduced salary role. The claimant was directed to not do any further work and to give his decision by October 11th.

Mr Grahan raised a grievance on October 9th about a breach of contract by paying him SSP, as well as unlawful deductions from his wages, breaching of policy and procedures, lack of formal discussions, and bullying and harassment.

The tribunal rejected Gravity's claims that the grievance was suspended by agreement and concluded that it was never addressed.

When Gravity dismissed Mr Graham in December the reason was given as the claimant breaching the mutual term of trust and confidence by the manner in which he requested 120 days sick pay. They further told him that his position had now ceased and his role redundant.

The tribunal found that the numerous references to Mr Graham's personal situation were in fact directly related to his wife’s health.

The tribunal concluded that there was absolutely nothing in the respondent’s contentions to indicate that Mr Graham performed poorly. The only context that may have changed in the future was Mrs Graham's condition and this showed an underlying insensitivity to her terminal cancer.

The tribunal came to the conclusion that all the comments and inferences which were made regarding Mrs Graham's condition and how this would affect the business.

The claim of unfair dismissal was agreed by the tribunal and the judge ordered Gravity to pay £10,400. The claim for direct disability discrimination was also successful with Gravity and Mr Parker being jointly responsible for paying the claimant £66,900. Gravity was also ordered to pay Mr Graham £12,600 for accrued but untaken holiday.


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