In this alert we look at a case where a credit controller in an insurance firm brought claims against his employer and also the Managing Director and Head of HR personally on the basis of her conduct towards him, says Caroline Rayner of Baines Wilson LLP.
Finch v Clegg Gifford & Co Ltd and Shirley Bellamy
Mr Finch had been in the insurance industry for many years and worked for Tradex in motor insurance as a credit controller. He transferred to Clegg Gifford & Co Ltd in 2017 under TUPE. He was good at his job and was largely left to his own devices. Throughout his employment Mr Finch experienced a series of health problems, including heart disease, angina, anaemia, kidney disease, hypertension, and type 2 diabetes which he takes medication for. Adjustments had been made to his start and finish times at Tradex.
Between 2018 and 2020 Mr Finch complained that the finance director and head of HR, asked him in an open plan office “are you planning on napping this afternoon”? This was because he did fall asleep sometimes in the office when it was hot and stuffy. The medication he takes for diabetes together with blood deficiency due to anaemia makes him very drowsy.
In March 2020, Mr Finch told the finance director and MD that his GP had just phoned him and was cross that he was in work, and that he reminded him he was vulnerable due to his age and disabilities and should go home and shield straight away. There was a misunderstanding in that this was treated as sickness absence. Mr Finch was due go on holiday abroad in September/October 2020. It was suggested that he bring his holiday forward and take it at that time in March to avoid his shielding being treated as sickness absence, with him being told to take the vacation now, otherwise he may not be around in September. These words upset Mr Finch and he said it could mean that he would be dead by September or October.
In April, Mr Finch was placed on furlough and paid 80% of his salary. On 6 July 2020, Mr Finch told his employer that he was allowed back to work from 1 August but flagged that due to issues with public transport at the time he didn’t know what time he would arrive at work. On 17 July, with no prior warning or consultation, he was given a settlement agreement which set out redundancy terms. Other employees received similar agreements. He didn’t sign the agreement and queried the terms including the start date. He received a response from the MD/head of HR which said, “you have received the maximum amount of statutory redundancy pay and we know you have been around since Pontius was a Pilate”. There followed a period of silence before Mr Finch’s solicitors sent a letter before action to the company on his behalf and the settlement agreement was rejected. The company then withdrew the offer of the settlement agreement, which had already been rejected, and requested that he return to work. Mr Finch resigned the day after with immediate effect and brought claims for harassment, victimisation, discrimination and constructive unfair dismissal.
Decision
Mr Finch’s claims for harassment succeeded in part. The napping comment was found to amount to harassment because it related to his disability and he found the repeated remark to be humiliating and degrading. In the context of where and how it was said, it created a humiliating and degrading environment for him and whilst that may not have been intended, it was reasonable for it to have that effect and motive did not matter. Similarly, in relation to the comment that he may not be around in September or October, Mr Finch found this to be deeply hurtful and humiliating given how life threatening his disabilities were and bearing in mind he had suffered two heart attacks and was on medication. Given the context and additional health worries around COVID-19, the comments related to his disability and also created a humiliating and degrading environment for him, and it was reasonable for it to have that effect. This was an act of harassment by both the employer and the employee who said it.
It had been argued on behalf of the company that the Pontius Pilate comment was a throwaway comment to “lighten the tone” however the tribunal unanimously found that the remark was offensive. It might be deeply offensive to a Christian and here it was an inference that it referred to Mr Finch being around so long because of his age. Again, motives were irrelevant and in the context of just having been told he was being made redundant he was upset. It created an “adverse environment” for him and amounted to harassment.
The solicitors’ letter before of action which made allegations under the Equality Act 2010 was a protected act. In response, the company issued Mr Finch with what amounted to an ultimatum, i.e. there was no discussion around his return to work about his role (given that he was surplus to requirements), and also his health and how the return to work would be managed. There was no genuine interest in his return to work. It was phrased as an ultimatum and gave no positive signals about the way forward in terms of his return. This was by now a “toxic environment” but the letter was not conciliatory or constructive in terms of a return to work. Rather, it was about “forcing his hand” after he rejected the settlement agreement and amounted to an act of victimisation.
The acts of victimisation and harassment were cumulatively serious enough to justify Mr Finch resigning and treating himself as constructively dismissed because of them.
A remedy hearing will follow to determine what level of compensation will be awarded. The tribunal noted that Mr Finch would have retired in March 2021 in any event so this will need to be considered on the question of remedy, as will how an award for injury to feelings will be apportioned between the company and the MD/Head of HR given the findings against her personally and also given that the employer has accepted vicarious liability.
Comment
This case is another reminder of promoting equality and diversity within the workplace, specifically having well implemented policies in place and carrying out effective training which is regularly refreshed on the issue. The tribunal commented several times in this judgment that motive is irrelevant. It is vital that people understand the legal implications of their conduct, for example that making comments can amount to harassment even if that was not the intention, and that they can be held personally responsible for it.
It is also a subtle reminder on dealing with employees who are offered settlement agreements. Such agreements are often offered to employees on a commercial basis however there are strict rules around how employers should conduct such negotiations. If employers fall short of the required standards, then it can serious implications and what was intended to be “off the record” can become admissible in the tribunal.
If you have any questions in relation to discrimination, harassment, settlement agreements or any other HR queries or would like to discuss training for your organisation, please contact our employment team on 01228 552600 or 01524 548494.
