UK: Disability Discrimination: Discriminatory Unfair Dismissal

Authors: Charles Urquhart, Corinna Harris, and Charlotte Stern

An employee who was constructively dismissed while on sick leave for cancer treatment when her employer appointed another employee to her role and misled her about the position was awarded over £1.2 million.

While Ms Wainwright, who was Head of Installations, was absent on sick leave undergoing treatment for cancer, Cennox plc appointed another employee to that role. Ms Wainwright discovered this through LinkedIn and when she enquired about it, the HR Director told her (incorrectly) that her role would be unaffected. She resigned after her grievance went unresolved, citing in her resignation letter that while on sick leave she discovered a colleague had been given her job despite assurances to the contrary, the role she was then offered was a demotion, and that the delay in handling her grievance was the “final straw”.

An employment tribunal allowed her claim for discrimination because of something arising in consequence of disability but did not uphold her other claims, including for wrongful dismissal and constructive unfair dismissal and discriminatory dismissal (this is constructive dismissal amounting to a discriminatory act).

In relation to the claims of constructive unfair dismissal and discriminatory dismissal, the EAT found that the tribunal had failed to analyse whether the acts of discrimination also amounted to fundamental breaches of contract. The tribunal should have considered whether there were such breaches and whether Ms Wainwright resigned at least in part because of those breaches. This meant the tribunal failed to consider whether, if she was constructively dismissed, her dismissal amounted to a discriminatory act. The EAT sent the claim back to the employment tribunal for determination.

Key Action Points for Human Resources and In-house Counsel

Discrimination against an employee will often constitute a repudiatory breach of contract. Where an employee resigns after a series of events in a “last straw” situation, the fact that the last straw was not discriminatory does not automatically mean that a constructive dismissal was not discriminatory.

This judgment was published by the EAT on 21 July 2025, two years after it was handed down. In the interim, the case returned to the employment tribunal which upheld the claims for constructive unfair dismissal and discriminatory dismissal. Ms Wainwright was awarded over £1.2 million in compensation, including £40,000 for injury to feelings.

EAT judgment:  Wainwright v Cennox plc

Remedy judgment:  Wainwright v Cennox plc