Monique Francois, who is of Afro-Caribbean heritage, was signed off work from charity Stay Safe East with a lupus flare-up for eight weeks in 2022.
The charity, which supports disabled women who are survivors of hate crime, abuse and harassment, had a scheme where it could pay employees a discretionary full sick pay, as opposed to statutory sick pay (SSP) while they were off sick.
Representatives of the charity had paid the full rate for white employees previously, but did not offer full sick pay to Francois. Instead they paid her SSP, despite being aware that she had struggled with her finances. The tribunal ruled that this was direct race discrimination.
The employer failed to prove their different application of discretionary pay was not due to Francois’ race, explained Aisling Foley, solicitor in the employment team at SAS Daniels LLP.
Speaking to HR magazine, she said: “The main thing for employers to remember is that they should always maintain a consistent approach when dealing with the exercise of their discretion.
“If they are not going to exercise discretion, as in this particular case, the employer needs to ensure that they provide clear reasons why, in order to prevent any claim that it may be for a discriminatory reason.
“In this case, the company failed to provide any real reason for their decision which subsequently meant the tribunal had to find that it was most likely due to race.”
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Francois began working for the charity in April 2019. She alerted them that she suffered with lupus upon starting.
The tribunal found that she had not been provided with the correct contract or confirmation of employment letter under the Employment Rights Act. This meant that her working hours were incorrectly recorded as 17.5, when she worked 19.5.
In May 2022, Francois’ aunt, who she was close to, died. She went to the Caribbean to attend her funeral, during which time she had a lupus flare-up due to stress.
She was signed off sick for four weeks, and another four weeks when she returned to the UK.
While she was off sick, the charity paid her SSP as it claimed that her employment status dictated she should only be paid that, not full sick pay, as she had worked there for under three years.
Francois told the tribunal this meant that she was paid below the minimum wage, which caused her to struggle financially. She had to rely on family and food banks, which the charity was aware of at the time.
The tribunal noted that the situation left her “emotionally devastated” as her job involved issuing food bank vouchers to service users. This had a “severe effect” on her mental health.
Francois claimed that she was paid SSP until she objected, and it took a long time to resolve the issue. She also did not receive payslips with records of her earnings, which caused her difficulty with accessing her housing benefit. The issue was not resolved once she was issued her payslips, as she had been overpaid.
The charity had a discretionary scheme where it could pay sick employees with financial difficulties full sick pay.
It had previously exercised this discretion with employees, including a white employee who had autism [referred to in the tribunal as 'AS'].
The tribunal noted that, while there was no obligation for employers to provide discretionary full sick pay, if it had one then it could not decide who it awarded this discretion to by virtue of their protected characteristic.
Francois claimed that she had been discriminated against as a result of her disability (lupus) and race.
The tribunal found that, as the charity employed mainly disabled people, it was unlikely it had discriminated against her for her disability.
Employment judge Housego ruled, however, that she had been subjected to direct race discrimination as the charity had showed “unconscious bias” by awarding white employees discretionary full sick pay and not Francois.
The tribunal report said: “This is a classic case of looking after someone who is like you, but not looking after someone who is different. This certainly applies to race, which is sufficient for the claim of unlawful discrimination to succeed.
“As Ms Francois pointed out, management knew that she was in great financial hardship, using food banks and borrowing from relatives, but they did not tell her there was a discretion to pay more than sick pay, or exercise that discretion. Plainly they knew of that discretion as it had been exercised for AS in the recent past.”
The charity was ordered to pay £15,000 in damages to Francois, which included £7,500 in injury to feelings, and £6,000 in deduction of wages and interest.
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Lydia Christie, legal director and head of hospitality and retail at Howard Kennedy LLP, told HR magazine that this case showed employers should be mindful of how they apply their discretionary policies.
“Although the tribunal found in this case that the initial failure of the employer to pay full pay for the sickness absence was simply an error and not race discrimination, it was the employer's failure to consider exercising its discretion to pay the claimant more than the specified contractual sick pay, which was found to be race discrimination,” she said.
“Managers and HR officers responsible for creating and implementing sick pay policies should be mindful of the risk of discrimination claims where policies allow an element of discretion to be applied, and where there is a risk that such discretion may be exercised differently by different managers for different employees.”
Diversity, equity and inclusion training could help managers and employers avoid discriminatory claims, Christie added.
“Equality and diversity training is key for those responsible for implementing workplace policies, and ensuring that managers are familiar with the potential types of discrimination claims that can arise from inconsistent or unfair application of such policies,” she said.
A representative of the Stay Safe East charity issued the following statement: “With regard to the recent tribunal outcome, Stay Safe East is appealing the judgement. We have evidence that we treated the claimant fairly, but unfortunately this evidence was not presented to the tribunal. As outlined in the full judgement, due to matters outside of our control, no written evidence was presented on our behalf. We will seek to rectify this through the appeal process.”
