In the case of Eddie Stobart Ltd v Graham, the EAT has held that an employment tribunal’s award of £10,000 for injury to feelings was excessive for an act of pregnancy/maternity discrimination claim that mainly consisted of the employer failing to take adequate steps to deal with a grievance that the claimant had twice emailed to it but which had been blocked by its firewall.
As there was little evidence of injury to the claimant, it was open to the tribunal to look at the manner of discrimination to test whether it could properly support inferences of secondary fact about that injury. However, the tribunal’s criticism of the employer was limited to some missed opportunities following up with the claimant about the content of her grievance and double-checking with her why it had not been received. There was nothing about her case to conclude that the claimant had been humiliated or disadvantaged.
The only reasonable conclusion that should have been drawn was that the respondent’s failure to deal with the claimant’s grievance was actually limited by way of both scope and impact. The EAT substituted an award of £2,000. It was prepared to infer some additional injury arising from the fact that the claimant was chasing up her grievance at a time when she should have been enjoying her maternity leave. As one can imagine, this is distressing at the best of times but even more so when a woman is on maternity leave.
The claimant was employed by the respondent as a planner at its Newhouse depot in Scotland. In October 2021 she told her line manager that she was pregnant. In March the following year, the respondent announced that it intended to cease its planning function in Scotland. This would entail making nine planners redundant at its Newhouse depot and creating four new ‘transport shift manager’ (TSM) roles. As a pregnant woman who would shortly be on maternity leave, the claimant asserted her right to be offered suitable alternative employment in preference to other employees, in accordance with Reg 10 of the Maternity and Parental Leave etc Regulations 1999 SI 1999/3312 (‘the MPL Regulations’).
However, as is often the case, the respondent took the view that the TSM role was not suitable for the purposes of Reg 10 and therefore required the claimant to attend a competitive interview. The claimant did interview at the outset of her maternity leave but was unsuccessful in securing the alternative role.
As a result, the claimant emailed the respondent a grievance about the failure to secure an alternative role, but did not receive a reply. When the grievance was discussed during a redundancy consultation, the claimant was asked to re-send it, which she did.
The claimant was made redundant on 26 May 2022 and although she did not appeal she did refer to her unanswered grievance. The claimant was told this would be looked into. It came to light that the grievance had not been received as her emails had been blocked by the respondent’s firewall.
The claimant asserted that she had been automatically unfairly dismissed within s.99 of the Employment Rights Act 1996 on the basis that the TSM role constituted a suitable vacancy she should have been offered. She also complained of pregnancy/maternity discrimination within s.18 of the Equality Act 2010 and that she had been subjected to six occasions of detrimental treatment contrary to S.47C ERA.
The claim for automatically unfair dismissal was dismissed with the Tribunal agreeing with the respondent that the TSM vacancies were not suitable for her. It did uphold her complaints of detrimental treatment contrary to s.47C ERA and of pregnancy/maternity discrimination, in so far as it found that the respondent failed to take adequate steps to deal with her grievance. The evidence surrounding the firewall blocking the grievance was accepted.
The Tribunal did observe that the respondent was aware of the grievance and did not effectively follow this up. Consequently, the Tribunal considered that the claimant’s absence on maternity leave had a material influence on how the respondent approached the grievance. The Tribunal went on to aware the claimant £10,000 in injury to feelings. The respondent asserted this was so high so as to be perverse and appealed to the EAT.
The EAT looked at the evidence of injury before the tribunal, which was limited. The claimant had stated she was ‘shocked’ and ‘upset’ because of the dismissive attitude towards her and her rights. Ultimately there can be no award if there is no evidence of injury.
However, the manner of discrimination can provide a basis for inferring the level of upset caused when evidence is otherwise lacking. The EAT went on to observe that many factual possibilities bridge the gap between the bottom and top Vento bands. The frequency and duration of the claimant’s exposure to the discriminatory conduct are not the only measures that can support an inference of injury. Conduct that seeks to humiliate and/or undermine a claimant can lead to a higher award for injury.
The EAT stated that direct evidence of injury from the parties can ultimately assist.
In this case, given the lack of evidence available, it was open to the Tribunal to look at the manner of discrimination and detrimental treatment to test whether it could properly support inferences of secondary fact about that injury. As already stated above, there was nothing about the claimant’s case that might indicate significant injury or trauma. The only proper and reasonable conclusion was that the respondent’s failure to adequately deal with the claimant’s grievance was limited in both scope and impact.
This could only ever have been a lower Vento band case. It was perverse for the Tribunal to place it any higher. The EAT allowed the appeal and substituted an award of £2,000, which is towards the lower end of the bottom Vento band. The EAT did comment that it would have considered a lower sum but was prepared to infer some additional injury arising from the fact that the claimant was chasing an update on her grievance during maternity leave.
We always advise clients that they have to evidence any injury sustained as a result of alleged discriminatory conduct. It is not enough to assert that injury has taken place and evidence by way of medical records will be required to secure a sizeable award for injury to feelings.
This blog was written by Elizabeth McGlone, Partner at didlaw.
