Employee Off Sick with Breast Cancer Awarded £40,000 After Getting Replaced at Work

In Ms Andrea Wainwright v Cennox Plc, Andrea Wainwright was replaced by her employer whilst off sick with breast cancer and receiving chemotherapy. The tribunal ruled that this constituted discrimination arising from her disability and awarded her £40,000 in compensation. In this article, we consider the facts and judgment in the case, together with the rights of employees with cancer and how employers might support them.

If you believe that you have suffered disability discrimination in the workplace, our friendly team at Redmans Solicitors would be pleased to advise you. Contact one of our employment law experts today to arrange an initial consultation.

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The Facts of Ms Andrea Wainwright v Cennox Plc

Claimant Signed Off Sick with Breast Cancer

Andrea Wainwright (the claimant) commenced employment with Acketts Group Ltd in July 2002. Initially, her role was that of Company Bookkeeper, but she progressed through several positions until reaching that of Group Commercial Director and Company Secretary in 2010. Her role changed in 2015 to that of Customer Services Director.

In 2018, Acketts Group Ltd was acquired by Cennox Plc (the respondent) and the claimant then became employed by the respondent. In December 2017, it was announced via email that the claimant’s role would be that of Head of Installations. Up to August 2018, the claimant’s workload steadily increased, and she confided to a colleague that she was struggling with her work-life balance.

On 17 August 2018, the claimant was diagnosed with stage 3 breast cancer. She was told that chemotherapy would commence on 24 August. She conducted a handover of her responsibilities on 20 August. The claimant officially went off sick with breast cancer on 21 August 2018 before her chemotherapy began. It was agreed that she would receive six months’ full pay during her sickness absence.

Claimant Off Sick with Breast Cancer Gets Replaced at Work

Immediately after the claimant was signed off sick with breast cancer, Miss Cawthorne took over the claimant’s role as Head of Installations for the respondent. This was necessary to ensure business continuity for the respondent. In late October, Ms Cawthorne informed the respondent that she had been offered a position with a rival company.

Ms Cawthorne was offered the role on the basis that the respondent’s expansion justified having two permanent heads of installations. This would continue when the claimant returned from being off sick with breast cancer.

On 23 November, a LinkedIn post was published, congratulating Ms Cawthorne on her new position. The claimant was concerned about this but was told by the respondent that her role would not change and that Ms Cawthorne was leading the team “for now”. This was reiterated in an email to the claimant on 12 March 2019. Ms Cawthorne’s permanent appointment as Head of Installations was not mentioned.

The claimant was informed of the respondent’s new company structure during a meeting on 20 June 2019. The respondent subsequently emailed updated organisational charts to the claimant, setting out the responsibilities for both head of installation roles. The claimant objected to this, stating that it was non-compliant with CDM Regulations and constituted a demotion for her.

Claimant Questions Restructuring and Raises Formal Grievance

The claimant returned to work after being off sick with breast cancer on 29 July 2019. She raised a formal grievance regarding the respondent’s restructuring on 31 July. A grievance hearing took place on 8 August, but the claimant’s grievance was not upheld. The claimant appealed this decision and was then signed off work with stress on 6 September 2019.

An appeal hearing for the grievance was arranged for 4 October 2019 and an investigation began. Unfortunately, the investigating officer was hospitalised on 20 September. The respondent contacted the claimant to suggest that the appeal hearing be postponed until the investigation could be concluded following the investigating officer’s return. The claimant did not agree to the postponement.

The claimant resigned from her role on 27 September, stating that this constituted constructive dismissal. She subsequently brought multiple claims against the respondent for direct disability discrimination, discrimination arising from her disability, victimisation, unfair constructive dismissal, and wrongful dismissal.

The Tribunal’s Ruling in Andrea Wainwright v Cennox Plc

This case was heard in the East London Hearing Centre by Employment Judge Burgher. The facts were duly considered by the tribunal, as were each of the claimant’s claims and evidence for the same.

It was explained that discrimination arising from a disability occurs when one person treats another unfavourably because of a disability. The treatment must also not be a proportionate means for achieving a legitimate aim.

The tribunal found that Ms Cawthorne being appointed to the role of Head of Installations without any input from the claimant constituted discrimination arising from a disability. This was unfavourable treatment to the claimant which would not have occurred if the claimant had not been off sick with breast cancer. Her sick leave constituted “something arising from a disability” as per the Equality Act.

It was further held that the respondent’s actions in appointing Ms Cawthorne were not a proportionate means for achieving a legitimate aim. Ms Cawthorne might instead have been appointed as temporary acting Head of Installations.

Initially, the claims for constructive unfair dismissal, ordinary unfair dismissal and wrongful dismissal were not upheld. However, upon appeal, an EAT found that the claimant being misled regarding Ms Cawthorne’s appointment as Head of Installations, was a strong factor that led to her resignation. She knew she had been lied to when resigning, which broke implied mutual trust and confidence.

The dismissal also amounted to constructive unfair dismissal, ordinary unfair dismissal and wrongful dismissal and the claimant was subsequently awarded £40,000 in compensation.

Employees with Cancer – Rights and Support

Cancer is considered a disability under the Equality Act 2010. As such, employees with cancer are protected from disability discrimination, discrimination because of something arising from a disability, and harassment related to disability under this legislation. This also applies to those applying for jobs.

Those working with cancer can ask for reasonable adjustments. These are adjustments to an employee’s job or workplace which will prevent them from being at a disadvantage because of their cancer. These might include, for instance, changes to working hours, being permitted additional breaks, or having time off for medical appointments.

Confidentiality laws also apply to personal data, including such things as a cancer diagnosis. This means that employers will be obliged to keep such information about an employee confidential unless the employee consents to it being shared. This upholds the employee’s right to privacy. For employees who have been off sick with cancer, employers should agree on a return-to-work plan.

If you believe that you have been treated unfavourably because of something arising from a disability, contact Redmans Solicitors today. Our employment law specialists will determine whether you may have experienced discrimination arising from a disability.

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