Ms Andrea Wainwright v Cennox plc — 2021

Ms Andrea Wainwright was found to have a disability for Equality Act purposes because she had stage 3 breast cancer. She had moved from Acketts to Cennox as Head of Installations on 1 January 2018, then went off sick for cancer treatment on 21 August 2018. While she was absent, Shelley Cawthorne stepped into the role and, in November 2018, was appointed permanently to Head of Installations. The tribunal found that the Claimant was not told that the appointment was permanent and was later given communications suggesting that her role was still open to her on return.

The direct discrimination claim under section 13 EqA 2010 failed. The tribunal held that the relevant comparator was a long-serving senior employee on long-term sickness absence during organisational change, and it did not find that the Respondent treated the Claimant less favourably because of her cancer. It accepted that the Respondent was dealing with a larger merged business, ongoing restructuring, and operational cover needs, and it found no evidential basis for an assumption or stereotype about cancer sufferers.

The claim under section 15 EqA 2010 succeeded in relation to the permanent appointment of Ms Cawthorne and the misleading communications of 27 November 2018 and 12 March 2019. The tribunal found that the Claimant was treated unfavourably because she was absent for cancer treatment, that the Respondent knew of her disability, and that the appointment could have been handled in a less discriminatory way, for example by using an acting or temporary arrangement. The March 2019 email was outside the primary time limit, but the tribunal extended time on a just and equitable basis because the Claimant only learned on 30 August 2019 that Ms Cawthorne had been appointed permanently.

The victimisation claim failed. Although the tribunal accepted that the Claimant had done protected acts, including her grievance and appeal, it found that the alleged detriments were not because of those acts. It was critical of the wording used in the 2 September 2019 email saying the manager was 'very surprised and very disappointed', but it found that this reflected his reaction to the appeal rather than retaliation for protected acts. The tribunal also rejected the complaint that the grievance and appeal had been mishandled or delayed in a way that supported victimisation.

The unfair constructive dismissal and wrongful dismissal claims also failed. The tribunal found that the restructuring had genuine business reasons, that consultation began in June 2019, and that the Claimant did not have a contractual right to remain the sole Head of Installations. It concluded that the Claimant resigned because she could not accept the new title and status in the reorganised structure, not because of a repudiatory breach of contract or a valid 'last straw'. A remedy hearing was listed for 22 June 2021 to determine compensation for the successful section 15 claim.