How to Avoid Getting Protected Conversations Wrong: Tarbuc v Martello Piling Limited
The EAT highlights the limits of protected conversations and the risks employers face when discussions are handled incorrectly.
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Case Study
The Employment Appeal Tribunal (EAT) has upheld findings that Essex County Council constructively dismissed and indirectly discriminated against a social worker by failing to properly involve her in an investigation into complaints made against her.
The case highlights the importance of communication during workplace investigations, particularly where an employee has a known mental health condition that may amount to a disability under the Equality Act 2010.
Ms Griffiths worked as a social worker for Essex County Council from 2004 until her resignation in 2020. She had anxiety and depression, conditions which were later found to amount to a disability for the purposes of the Equality Act 2010.
In 2018 concerns were raised about aspects of her work, including time management, the late uploading of minutes and allegations that she was overly challenging in her dealings with service users.
The Council launched what it described as a “forensic review” of her work. Although Ms Griffiths was told that complaints had been made by colleagues, she was not informed of the nature of the complaints, who had raised them or that they were the subject of an investigation. Instead, she was simply told to “do better”.
Ms Griffiths repeatedly sought further information and made clear that she was concerned about what was happening. However, she received no meaningful explanation and was given no opportunity to participate in the investigation process.
The uncertainty became an extreme source of stress and caused her mental health to deteriorate. Although the investigation ultimately found that the complaints were unfounded, Ms Griffiths later raised grievances about the way she had been treated. She received no outcome to her first grievance and subsequently raised a second grievance alleging victimisation.
Following a period of sickness absence, she resigned in 2020 and brought claims for constructive dismissal and disability discrimination.
The Employment Tribunal found that Essex County Council had fundamentally breached the implied term of trust and confidence, entitling Ms Griffiths to resign and treat herself as constructively dismissed.
The Tribunal identified several failings, including:
The Tribunal also found that Ms Griffiths had been subjected to indirect disability discrimination.
Although the Council argued that it was standard practice to investigate concerns without informing the employee of the details or allowing them to participate, the Tribunal concluded that this practice placed Ms Griffiths at a particular disadvantage because of her anxiety and depression.
The Council was unable to show that the approach was a proportionate means of achieving a legitimate aim and therefore could not justify the practice. The EAT subsequently upheld those findings on appeal.
Case Study
Because Ms Griffiths’ loss of employment flowed from the discrimination found by the Tribunal, she was entitled to pursue uncapped compensation.
The Tribunal awarded more than £150,000, although the EAT has asked the Tribunal to reconsider the award and is expected to increase it to account for additional future losses and pension loss.
Importantly, the EAT agreed that the discrimination had continued over a significant period, that Ms Griffiths never fully recovered from its effects and that it was the primary reason she ultimately resigned. As a result, the losses arising from the end of her employment were found to flow directly from the disability discrimination as well as the constructive dismissal.
This case demonstrates the risks of excluding employees from workplace investigations, particularly where an employer is aware of an underlying mental health condition. A process that appears neutral on its face may still place disabled employees at a particular disadvantage and give rise to discrimination claims.
Employers should:
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