Claimant suffered distress, anxiety and trauma
A charity has been ordered to pay £18,684 to a former employee after a complaint of constructive dismissal, indirect sex discrimination and pregnancy discrimination was upheld.
The claimant, R Malcolm, one of three house supervisors at a sheltered housing unit operated by Blackwood Homes and Care, said she suffered distress, anxiety and trauma because of the actions of charity.
She resigned on 16 June and filed an employment tribunal claim.
Malcolm worked at Beech House sheltered housing complex in Killearn, Glasgow, on Mondays for nine hours and the other supervisors worked the rest of the days on a seven-day rota.
She initially worked for Abbeyfield Scotland before her employment was transferred to Blackwood Homes and Care in September 2022.
The new contract of employment provided that the employee was “contracted to work 18 hours per week, working 2 days out of 7. The rota may from time to time be amended by Abbeyfield Scotland Limited and you will be given reasonable notice of this.”
Malcolm worked Mondays from the commencement of her employment until its termination and Fridays from 22 March 2021 until its termination. She also worked additional shifts to cover for her colleagues when she was able to do so and provided she had sufficient notice.
Malcolm’s oldest daughter was in childcare at nursery on her working days (Monday and Friday). The nursery required Malcolm to commit to set days and would not allow any change or flexibility to this.
She therefore could not commit to a variable rota due to her personal circumstances, the tribunal was told, as she worked as a carer for her partner’s grandmother Tuesday, Wednesday and Thursday every week and had no childcare available at weekends with her partner working Sundays every week.
The organisation and managers were aware all these circumstances.
The tribunal heard that Jane Ritchie, Malcolm’s area supervisor, made derogatory and disrespectful remarks about Malcolm to other employees to the effect that “if childcare was an issue her why was she having another child” (during Malcolm’s pregnancy); and she “has no intention of doing the rota so she won’t be back anyway” (while she was absent on maternity leave).
It was also revealed that an email was sent from Ritchie’s laptop on 2 May 2022 stating “I hate her”.
Ritchie told the three housing supervisors to submit flexible working requests under the charity’s flexible working policy.
Although two of Malcolm’s fellow supervisors had their flexible working requests approved, Malcolm’s was refused.
Malcolm appealed the decision on 28 September 2022 and an appeal hearing took place virtually on 24 November 2022.
She was told her appeal was unsuccessful on 12 December 2022 and filed a grievance email on 10 March 2023, but this was rejected a month later.
After awarding damages, the tribunal concluded: “The actions of the claimant did not in any way contribute to the dismissal. The dismissal was entirely caused by the unacceptable, unfair and unreasonable conduct of the respondent.”
It added: “The tribunal considers and finds that the claimant did suffer distress, anxiety and upset as a consequence of the discriminatory treatment by the respondent. The treatment had a detrimental impact on her mental health and impacted on her family life and self-confidence.”
Simon Fitzpatrick, Chief Executive of Blackwood Homes and care told TFN: “While we disagree with the tribunal’s judgment that we discriminated against Ms Malcolm, we recognise that prior to the transfer of Abbeyfield Scotland into Blackwood Homes and Care, her request to work flexibly was handled poorly.
“We accept that this caused her distress and apologise to Ms Malcolm. We will carefully review the tribunal's findings to learn lessons.
“Blackwood strives to provide a supportive and inclusive workplace for all our employees, and we are proud to provide our staff with pathways towards achieving long and rewarding careers in roles that make a positive difference.
"Our focus continues to be on delivering high-quality care to all of our customers and supporting our valued staff.”
