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Case Study: Assisting a retail employee to bring a claim for discrimination on grounds of sex, age and disability, and also for victimisation

Employment Law

How Christianne Silverwood, expert Employment Law solicitor based in our Brighton office, helped an employee bring their discrimination and victimisation case in the Employment Tribunal, winning a substantial settlement.

The situation

Kate was employed by a local record shop as a sales assistant for two and half months. She worked variable hours, earning £8 per her hour. She was never given an employment contract or statement of terms. The dress code was casual. Within 7 weeks she was promoted and was asked to take on marketing responsibilities.

Two and a half months after the employment began, Kate’s skin condition flared up. She attended work without make-up. One of the company’s directors criticised her appearance, accusing her of looking unprofessional and unpresentable. She accused Kate of having had a late night, imbibing alcohol and looking “hung over”. These accusations were offensive and untrue.

Kate was offended by the director’s response to her appearance and felt intimidated, humiliated and ashamed. She tried to discuss the matter with another director. She told him she had a skin condition and was unhappy with the requirement to wear makeup because she needed to let her skin “breathe” to recover. Kate explained she was unhappy with the way that the first director had responded. The second director was unsympathetic but agreed to speak with the first director.

Later that same day, the first director told Kate that she would no longer be needed to carry out marketing duties and these would be covered by a new member of staff.

Kate believed that she was being punished for complaining about the way that she had been treated by the first director by being demoted. That evening, Kate wrote to the directors resigning with immediate effect in response to taking away her marketing duties and the requirement that she wear full face make-up.

She asked to be paid for the hours she had worked.

Her employer refused to pay her outstanding salary and threatened to sue Kate for their losses. Kate sent a breakdown of the outstanding wages owed to her and notified Acas early conciliation. In turn, the employer wrote back, again refusing to pay the salary owed and accusing her of behaving like a child and being immature and naïve.

What Martin Searle Solicitors did

Christianne wrote to Kate’s employer setting out her potential claims, which included claims for unauthorised deductions and sex discrimination. The employer rejected our invitation to settle and approached Kate’s family direct, asking them to persuade Kate to withdraw her claims, threatening to sue her and implying that Kate’s career and reputation would be damaged if she did not. Kate found this letter to be intimidating.

We submitted a detailed claim to the Employment Tribunal on grounds of sex discrimination, age discrimination, disability discrimination, harassment, victimisation and for unauthorised deductions from wages, holiday pay, failure to provide an itemised pay statement or statement of written particulars.

In a Case Management Hearing, the judge ordered the employer to pay the unauthorised wages and holiday pay.

The case was listed for a full three day hearing for January 2019. We prepared the bundle of documents for the trial and detailed witness statements. The bundle included medical evidence and photographs to show Kate’s disability at all material times. It also included a series of offensive emails to Kate, and a letter to her family, which were marked as being without prejudice. These emails and letters were marked up as “without prejudice” but made no attempt to settle the claims and were, therefore, not genuinely without prejudice.

The director applied to strike out the claimant’s disability claims. She also applied to exclude some of the evidence produced by Kate, including a medical report and a series of offensive emails and letters by the director to Kate and her family.

On the morning of the hearing, the parties were advised that the case was postponed due to a shortage of employment judges. However, a case management hearing took place to address some of the procedural issues and another preliminary hearing was listed for September 2019 to address the director’s applications to exclude evidence and to strike out the disability claim.

We arranged for a barrister to represent Kate at the preliminary hearing. The employment judge did not allow the director’s applications to strike out Kate’s claims and did not allow the director’s applications to exclude any of Kate’s evidence.

The employment judge agreed (with us) that the documents marked up as being “without prejudice” were not genuinely without prejudice and could, therefore, appear in the bundle at the full trial.

The result

The full case was listed to be heard for a 3 day hearing, commencing in January 2020. The director applied for a postponement saying that she was ill but did not supply adequate medical proof. The case was heard in her absence and, in a decision in June 2020, the Employment Judge found that Kate had been discriminated against on grounds of age, subjected to harassment on grounds of sex and victimised. She was awarded total compensation of £15892.85. This sum was made up of: £10,402.52 for injury to feelings, with the remaining sum being awarded for financial losses and the company’s failure to provide itemised payslips.

This case was reported in the Sun newspaper on 10th July 2020

If you are experiencing discrimination, harassment or victimisation in the workplace, our Employment Law team can help. Contact us on 01273 609911, or email info@ms-solicitors.co.uk.

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