Veitch Penny LLP - Exeter | Crediton, Devon

Case

Nixon –v- Ross Coates & another
Employment Appeal Tribunal – 6 August 2010

Issues

(1) Unfair dismissal
(2) Maternity rights
(3) Contributory fault

Facts

Ms Nixon was employed in a business development role in Ipswich. She was in a relationship with one of the firm’s solicitors, Mr Perrin. In December 2007 Mr Coates organised the Christmas party for the firm. Ms Nixon was seen kissing the IT manager, Mr Wright. It was alleged that they left together and were said to have shared a hotel room. In the New Year, Ms Nixon advised Mr Coates, confidentially, of her pregnancy. However, within hours the HR manager, Ms O’Hara started to gossip about her pregnancy and the potential identity of the father. Mr Wright heard about the pregnancy and expressed his concern to Ms Nixon in a series of text messages.

Ms Nixon became aware of the gossip and asked to work in another office as she could no longer work with the HR manager. She raised a grievance about the rumours, asking for the firm to step in to stop them.

She was refused to allow to move and she was required to return to work or lose pay. Ms Nixon later found that her desk had been taken by a newly recruited sales and promotion manager. When she was not paid she resigned and brought claims of constructive dismissal, sex discrimination, harassment and pregnancy related discrimination.

At the Employment Tribunal her claims of discrimination were dismissed as Ms O’Hara’s behaviour was not deemed to be “intimidating, hostile, degrading or humiliating.” Furthermore, it found that the refusal to allow her to work at another office was not sex discrimination. By contrast, her constructive dismissal claim was successful. The Tribunal found that the employer was wrong to insist that she return to the Ipswich office before escalating her grievance and terminating her pay, but made a 90% deduction for Ms Nixon’s contributory negligence based on her conduct.

The matter was appealed to the Employment Appeal Tribunal (EAT).

Decision

The EAT upheld the constructive dismissal decision confirming that failure to deal with her grievance did constitute a breach of trust and confidence. They went on to state that the 90% deduction was incorrect as the Employment Tribunal had incorrectly taken into account her behaviour post-termination. The EAT noted that whilst the Tribunal took a dim view of Ms Nixon’s conduct, that could not be taken into account when considering the compensatory award which had to be in accordance with the loss she suffered.

The EAT reviewed the sex discrimination claim and confirmed the discrimination claim was successful; the gossip from the HR manager was “connected with the pregnancy” as defined by the Sex Discrimination Act as it amounted to a course of unwanted conduct. The failure to deal with her grievance, prevent the gossip and refusal to allow her request to move offices constituted pregnancy-related discrimination. The matter was remitted back to the Employment Tribunal to consider remedies.

Comments

This case is a clear example of how seemingly innocent gossip can lead to something considerably more serious and stresses the importance of dealing with issues promptly (where possible) before they can escalate.