In this case, the EAT overturned an employment tribunal's decision to award an employee £10,000 for injury to feelings for pregnancy/maternity discrimination that related to her employer's failure to deal with a grievance, and gave guidance on how tribunals should assess such awards.
Facts
Ms Graham started working as a planner for Eddie Stobart Ltd (ES) at its Newhouse depot in July 2021. In October 2021, she informed ES that she was pregnant.
In March 2022, ES began a redundancy consultation process, proposing to cease its planning function at Newhouse and create four new transport shift manager (TSM) roles. Ms Graham asserted that she had a priority right to be offered the TSM role as a suitable alternative vacancy during her maternity leave (which she began on 12 April 2022). However, ES decided that the TSM role was not suitable, and required Ms Graham to attend a competitive interview, at which she was unsuccessful.
On 26 April 2022, Ms Graham submitted a grievance about ES's refusal to offer her the TSM role as a suitable alternative. When she mentioned at a redundancy consultation meeting that she had done so, the HR business partner said she had not seen the grievance and suggested Ms Graham resubmit it, which she later did. However, it transpired that both her original grievance and the resubmitted grievance had been blocked by ES's firewall system and were never seen by HR.
ES gave Ms Graham notice of dismissal for redundancy on 28 April 2022. During her notice period, Ms Graham mentioned her unanswered grievance to the Head of HR, who said she would look into it, but did not follow up. Ms Graham's employment terminated on 26 May 2022.
Ms Graham brought employment tribunal claims alleging that her dismissal was automatically unfair due to ES's refusal to offer her the TSM role, as a suitable alternative vacancy, and that ES's failure to deal adequately with her grievance amounted to pregnancy/maternity discrimination and detriment.
The tribunal rejected Ms Graham's claim of automatically unfair dismissal, holding that the TSM role was not a suitable alternative. However, the tribunal found that although both grievance emails had been blocked by ES's firewall, ES's failure to follow up with Ms Graham when she told them she had lodged a grievance was materially influenced by her being on maternity leave, which amounted to pregnancy/maternity detriment and discrimination.
The tribunal awarded £10,000 for injury to feelings – towards the lower end of the middle Vento band at the time. (The Vento bands help tribunals identify the appropriate amount of injury to feelings awards.) This award was based on Ms Graham having suffered a degree of upset at ES failing to consider her grievance. ES appealed, contending that the award of £10,000 was so excessive as to be perverse.
The EAT upheld the appeal. It commented on how the manner of discrimination may help inform the amount of an injury to feelings award, highlighting in particular that:
- The frequency and duration of an employee's exposure to discriminatory conduct are not the only relevant factors.
- Overt discrimination may be more likely to cause distress and humiliation, because the employee will understand the motivation to be discriminatory.
- Greater harm may be caused where discrimination is played out in front of colleagues or others, given its potential to cause feelings of humiliation.
- There may also be more serious injury in cases involving a power imbalance, such as where discrimination is manifested in disciplinary threats that create worry, or exclusion that causes isolation.
- Discrimination experienced by an expectant mother may detract from the joy associated with birth, adding to the seriousness of injury to feelings.
The EAT also noted that tribunals would be assisted by parties providing evidence in support of any injury to feelings claim, and suggested the following areas as helpful to consider:
- The starting point should be the employee's description of their injury. However, tribunals should scrutinise both apparent upset and apparent stoicism with care, and take into account any fragility that makes a particular employee more vulnerable to upset.
- The duration of the consequences will be relevant; an employee's upset may be fleeting or long-lasting.
- The effect on the employee's past, current and future work may help inform the assessment, e.g. where discriminatory treatment has affected the employee's current enjoyment of their work, or made them less likely to remain in the same line of work in future.
- Finally, the tribunal may consider the effect of the discriminatory treatment on the employee's personal life or quality of life, such as their relationships, hobbies, etc. (where evidence from a third party such as a family member may be relevant).
In this case, the EAT held that the failure to deal properly with Ms Graham's grievance was an isolated act, limited in its scope and impact. The injury was minimal and an award in the middle Vento band was perverse. The EAT therefore substituted an award of £2,000 – towards the lower end of the bottom Vento band.
What does this mean for employers?
This decision offers reassurance to employers that it is possible to successfully challenge injury to feelings awards that are out of all proportion to the seriousness of the injury suffered, based on the evidence available. It is worth noting that the EAT would have considered an even lower award in this case, but it agreed with the tribunal that some additional injury could be inferred from the fact that Ms Graham had been chasing up her grievance at a time when she should have been enjoying her maternity leave.
