10 April 2017

In the case of 'Downie v Coherent Scotland', the employer believed that the HR Manager’s role required to be full time. The Claimant was unable to do so for family related reasons but proposed various alternatives. The Claimant was dismissed by reason of redundancy. She raised Tribunal proceedings arguing that her dismissal was unfair and amounted to unlawful discrimination. She sought reinstatement which failing, compensation.

The Claimant argued the employer imposed a provision criteria or practice, i.e. that the role be full time. She could not comply with that requirement. It was accepted that more women than men would be adversely affected by this requirement and so the issue (for the discrimination claim) was whether the imposition of that requirement was justified.

The Employment Tribunal upheld each of the Claimant’s claims. The Tribunal was not satisfied that the Claimant’s position was redundant (given there was in fact an increased requirement for the work required). Even if there had been a reorganisation, the employer ought to have explored the Claimant’s proposals to avoid her dismissal and the employer had not acted fairly. The dismissal was therefore found to be unfair. The Tribunal also found that the imposition of the requirement that the role be full time was not objectively justified given the options presented by the Claimant and the lack of consideration. The dismissal was therefore also found to be unlawful indirect sex discrimination.

In considering remedy, the Tribunal was satisfied that reinstatement was appropriate. The Tribunal looked carefully at the evidence from the parties and changes to the business and was satisfied, despite the passage of time, that reinstatement be ordered. The Tribunal also awarded significant compensation (to ensure the Claimant was placed in the position she would have been, had she not been dismissed) and compensation in the sum of £14,000 for injury to feelings.

This case serves as an important reminder of the need to ensure that changes to roles are fully and properly considered and that employee suggestions to avoid dismissal are genuinely examined. Genuine dialogue is needed with appropriate evidence maintained. The case is another reminder of the need to ensure an equality impact assessment is made where changes to the business are proposed to identify any potential discrimination issue and what, if any, justification exists and how this will be properly established in the event of challenge.

Judgment: Downie v Coherent Scotland 

Contact: David Hoey, Partner dho@bto.co.uk  T: 0141 221 8012