The Employment Tribunal (ET) has ruled that an employer discriminated against a software executive in association with his wife's cancer treatment, awarding just under £90,000 in compensation.
The case of David Graham v Gravity Supply Chain Solutions Limited and Other, has brought about a relatively rare judgment of associative discrimination, with the ET stating that there had been an underlying insensitivity from the Respondents about the terminal condition of the Claimant's wife.
Background
The Claimant, Mr Graham, worked for Gravity Supply Chain Solutions Limited (GSCSL) at its Hong Kong office, as Head of Business Partnerships. In 2019, Mr Graham's wife was diagnosed with stage four breast cancer. Mr Graham's manager and chief executive, Mr Parker, suggested that he return to the UK to support his wife through her treatment, a move that was taken up by Mr Graham. It was also agreed that Mr Graham could work flexibly to meet the changing needs of his wife's care and to support their son.
However, adjustments were not implemented and Mr Graham was continued to be required to work across multiple time zones. To meet these demands, Mr Graham was routinely working from 6am until the early hours of the morning. In the summer of 2021, his wife's health deteriorated further and, on 08 August 2021, Mr Graham sent a message to Mr Parker explaining that the continued lack of sleep was posing a risk to his health. Mr Parker suggested that Mr Graham take some time off to recover.
Mr Graham took his manager up on this suggestion, initially taking annual leave and then sick leave. During this time, Mr Graham's access to work emails and computer network was stopped. Shortly after going on leave, Mr Graham was asked to join a video call with Mr Parker and GSCSL's HR manager. On this call, Mr Graham was informed that he would be demoted and be subject to a 35% pay cut, his remit would be restricted to Europe and his working hours would be 9am to 6.30pm. Further, his sick pay would be reduced to statutory sick pay (SSP), despite Mr Graham's contract stating that his first 120 days' sick leave should be on full pay.
Mr Graham's pay was then recalculated in accordance with SSP, leading to Mr Graham's September pay being reduced by £3,000. Mr Graham tried to return to work on full pay on 01 October 2021, but his access to work emails and the computer network was not reinstated.
Mr Graham raised a grievance about the breach of contract by paying him SSP, unlawful deductions from wages, breaching policy and procedures and a lack of formal consultation by attempting to unilaterally change the terms of his contract through bullying and harassment. This grievance was never addressed by his employer and then, in December 2021, GSCSL terminated Mr Graham's contract via email and placed him on garden leave until May 2022. It stated that the reason for his dismissal was that he had breached the implied term of trust and confidence by the manner in which he requested 120 days' sick pay earlier in the year.
Mr Graham brought forward numerous claims in the ET, including that of direct disability discrimination through association.
Decision
The ET found that Mrs Graham's cancer was a material and significant reason for GSCSL's actions and that Mr Graham's manager was more concerned about the impact the deterioration of her health would have on the business, due to Mr Graham needing to focus more time on his family.
In relation to the reduction in pay, status and responsibilities, the ET judged that there was no evidence presented by the Respondents that Mr Graham was underperforming in his role and reasoned Mr Parker had made statements that evidenced that these reductions would be a temporary measure.
The ET concluded that, in the absence of any evidence that Mr Graham was performing poorly in his role, the only context in which GSCSL could see this changing in the future was Mrs Graham's disability. They reasoned that GSCSL had knowledge of the course that Mrs Graham's disability was taking and that Mr Graham would have less time to focus on his role. This led the ET to decide that there had been underlying insensitivity of Mrs Graham's terminal cancer.
Mr Graham received a compensatory award of £66,900 for his claim of direct disability discrimination, £10,400 in relation to his unfair dismissal claim and £12,600 for accrued but untaken holiday pay. His claims for victimisation, unauthorised deduction from wages in September 2021 and breach of contract failed.
Learning Points
This case serves as a strong reminder that employers should take a proactive approach to prevent a claim of associative discrimination arising in the first place. This could include providing training to help increase awareness and understanding of how employees might be impacted by being associated with a person who is classed as disabled under the Equality Act 2010.
While it is rare for an ET to make a finding of associative discrimination, this case highlights that it can be a costly judgment for employers and that consideration needs to be given not just to the disabled employee but to any employees associated with the disabled person.
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