Newtons Solicitors help their client achieve a success with her claims of unfair dismissal and sex discrimination before the Employment Tribunal following an Employers’ failure to deal properly, reasonably, and in accordance with its legal obligations during the Coronavirus/Covid 19 pandemic.
The Claimant had worked successfully as a project administrator for the Respondent who supply services to the Ministry of Defence and armed services. The Claimant was classified as a Key Worker but had an underlying health condition, making her clinically vulnerable to Covid 19. Further, she had successfully worked from home during the early stages of the pandemic, while colleagues had agreed to cover the limited duties that needed to be undertaken from “work.”
However, the Claimant was instructed that she would have to attend work on a rota with colleagues. She challenged the instruction and whether appropriate health and safety measures were in place. Having had her grievance promptly dismissed she was subsequently faced with a disciplinary process. Her confidence with her employer was further damaged following representations made by her line manager during both the grievance and disciplinary process.
The Claimant went then signed off work and her situation deteriorated even further when she made enquiries about homeworking due to her childcare requirements. She raised issue with her manager of childcare should she return to work and was advised that flexibility would not be granted. The Claimant resigned claiming constructive unfair dismissal in late July 2020. The Claimant pursued claims of constructive unfair dismissal, automatic unfair dismissal and detriment and indirect sex discrimination.
Attempts were initially made to try and negotiate a resolution prior the Claimant resigning. When this was unsuccessful ACAS early conciliation application was submitted in September 2020.
The negotiations through ACAS were unsuccessful during the early conciliation process and a claim was issued in the Newcastle Employment Tribunal. The proceedings went on for approximately 9 months before being determined at an Employment Tribunal Hearing which took place over 4 days by video link.
The Employment Tribunal reserved their decision at the conclusion of the hearing so they could deliberate on case. The written decision was sent out to parties two weeks later.
The case was interesting and challenging in several ways. Primarily it covered health and safety issues related to the Coronavirus Pandemic and the challenges this presented to both Employees and Employers in what was an unprecedented situation (of recent times anyway). The case covered circumstances which were new and untested, so while interesting it was less certain as to the approach the Tribunal and Courts would take, especially in the case of Key Workers.
The claim also covered the challenges facing parents and, in this case, a working mother who had childcare requirements. The pandemic led to school closures, reduced alternative childcare options, and as such a greater need for flexibility to look after younger children. Much of this responsibility still falls on working mothers and it was going to be interesting, if again perhaps less clear, as to how Tribunals would consider childcare needs for working parents against the demands of Employers? The requirement for flexibility with childcare provided the claim of indirect sex discrimination for a working mother when not granted.
The case was to a large extent fact and evidence sensitive, it would turn on how the evidence and in particular witnesses came over. Much emphasis was on trying to get the case well set out at an early stage from even before the employment ended and then to ensure good presentation and representation of the claim and evidence through to hearing.
This was an emotional situation for Claimant, who had gone through a difficult period, who wanted acknowledgment for the way she had been treated by her employer.
The unanimous Judgment of the Tribunal was all claims succeed. More importantly, the findings of the Tribunal, in the way she had been treated by her Employer provided the vindication sought.
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