A former software executive at Gravity Supply Chain Solutions has been awarded £89,900 after an employment tribunal ruled that his employer had discriminated against him in association with his wife’s cancer treatment and that associative discrimination took place due to an underlying insensitivity around her terminal condition.
Graham began working for the software firm as head of business partnerships in 2015, initially at its Hong Kong office, and from April 2021 for its UK entity.
In 2019, Graham’s wife was diagnosed with stage four breast cancer when he and his family were about to relocate to the United States to lead the American sales operation. His manager and chief executive, Graham Parker, suggested he return to the UK to support his wife’s treatment.
He agreed that the claimant could work flexibly to meet the changing needs of his wife’s care and support their son. To manage the demands of multiple time zones, Graham was routinely working from 6.00am often until the early hours of the morning. Over the summer of 2021, his wife’s health deteriorated further, and on 8 August 2021, he sent a message to Parker explaining the risk to his health from the lack of sleep, and took some time off at his suggestion.
Graham did so, initially taking annual leave and then taking sick leave. His access to work emails and computer network was stopped. About one month into the absence, Parker created a WhatsApp group with Graham and Cai, the HR manager. Parker asked if Graham could join a video call the following day to make him aware of “a couple of things to discuss”.
On the call, which Graham conducted from a hospital car park, only the claimant and Cai had their cameras on. Parker had only an audio connection. The tribunal panel did not accept this was accidental, but agreed with Graham that it was because Parker knew it would be a difficult conversation.
Parker explained that Gravity was planning to create the role of chief commercial officer, but that Graham would be demoted. The new full-time role would have meant an approximately 35% pay cut for Graham but would have restricted his remit to Europe and his hours to 9:00am to 6:30pm. His sick pay was also reduced to statutory sick pay (SSP), despite his contract stating his first 120 days’ sick leave should be on full pay. Parker claimed full pay was made on a discretionary basis.
Graham’s pay was recalculated such that SSP applied, and Cai sent an email explaining the implications of that for his September pay, which was reduced by around £3,000. He attempted to return to work on full pay on 1 October, but his access to work emails and the computer network was not reinstated.
In a meeting on 5 October, Parker confirmed Graham’s options were to leave “being paid six months on garden leave, whatever” or to take the reduced role. Graham was directed not to do any work, but to give his decision by 11 October.
On 9 October, he 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.
In December, Gravity terminated Graham’s contract in an email, telling him he would be on garden leave until May 2022. It stated that the reason for his dismissal is that he breached the mutual term of trust and confidence by the manner in which he requested 120 days’ sick pay earlier in the year.
The tribunal found the alleged detriments not materially in dispute, it accepted that the claimant did suffer a reduction in full sick pay to SSP, that he was told he would be demoted in pay and status, that his access to the network and emails was unilaterally cut and not restored, and that he was dismissed.
The tribunal judgment said: “There is nothing in the respondent’s contentions that the claimant was poorly performing elsewhere that admits the idea of resuming his work, responsibilities or pay at a later date. The only context in this case that could possibly change in the future, in a way that might mean the changes imposed were temporary, is Mrs Graham’s disability. This belies a particular underlying insensitivity in the context of her terminal cancer.
“We have come to the conclusion that the comments made and the inferences we can properly draw from them do mean the claimant has proved facts from which we could conclude Mrs Graham’s disability was a material and significant reason for the respondent’s actions. We, therefore, reject the respondents’ submission that the burden [of proof] has not shifted. The three detriments and the dismissal all flow from this underlying perception about what her disability will mean to the business.”
Graham’s claim of unfair dismissal succeeded against Gravity and the judge ordered compensation of £10,400. The claim of direct disability discrimination also succeeded against Gravity and Parker, the respondents being jointly liable to pay the claimant £66,900. Gravity must also pay for accrued but untaken holiday pay amounting to £12,600.
