Whilst most would like to view Covid-19 as a distant memory, the employment tribunal recently awarded £26,438.84 to an employee of Kevin Davies, father of British Lions and Wales rugby star Gareth Davies, who deliberately coughed in her face during the height of the pandemic.
Facts
The claimant worked as a property rental manager at Kevin Davies' car sales and property business, Cawdor Cars, in Newcastle Emlyn, West Wales, from 2017 to 2020. As the COVID-19 pandemic broke out, the claimant asked her colleagues to socially distance themselves from her due to her suffering from an autoimmune disease and psoriatic arthritis, which constituted a disability under the Equality Act 2010.
A tribunal heard that Mr Davies mocked the vulnerable claimant for her fears over her health concerns and Covid-19. Employment Judge Tobias Vincent Ryan stated that Mr Davies "coughed in her direction deliberately and loudly, commenting that she was being ridiculous, with an intention to ridicule and intimidate her".
Judge Ryan also found that other members of the firm's management team overheard the coughing incident, but when asked to give evidence at the tribunal, they came across "defensively and as not being wholly straightforward." The claimant also complained "vehemently" about the coughing incident and resigned from the business shortly after.
Employment tribunal judgment
The employment tribunal considered the issue of discrimination arising from disability under s.15 Equality Act 2010. It was held that "coughing in anybody's face is unfavourable treatment and can never be favourable". Further, "doing that because of a pandemic is gross behaviour and doing it to somebody who is and who has asked for respectful social distancing is appalling".
The tribunal held that the employee had been very clear about her disability and had explained her circumstances to Mr Davies. Thus, Mr Davies' conduct on 17 March 2020 was inexcusable and could not be discounted as a joke or something light-hearted. The employee stated, "he knew of my medical condition. He knew I had no immune protection because of the medication I had to take, and he deliberately coughed in my face. I was shaking. I'm not a silly, fluffy person - I've had to put up with a lot in my life - but it really got me". The claimant therefore succeeded with her claim for discrimination arising from disability.
In addition, the tribunal assessed the matter of victimisation under s.27 Equality Act 2010 due to the claimant being subject to detriment by Mr Davies after lodging a complaint on 18 March 2020 about his discriminatory behaviour. The complaint referred to Mr Davies coughing on her, not following the Covid-19 guidance in place and laughing at her for trying to ensure respect for social distancing per the government guidelines. The tribunal held that this complaint amounted to a protected act and, therefore, the claimant also succeeded in her claim for victimisation.
Finally, it was also held that the discrimination experienced by the employee arising from her disability was an extremely significant, material, influence in her decision to resign and therefore constituted a constructive unfair dismissal. Indeed, the tribunal found that Mr Davies committed a breach of the implied term of mutual trust and confidence, and the claimant did not delay too long before resigning such that she could be said to have affirmed her contract.
Damages
The judge ordered that that the claimant should receive a total payout of £26,438.84. This included a payment of £3,841.94 by Cawdor Cars for unfair dismissal, and a payment by both Cawdor Cars and Mr Davies of £18,000 in damages for injury to feelings and £4,596.90 for the interest accrued since the coughing incident.
Lessons for employers
Fostering an environment that promotes equality, diversity, and inclusion is crucial to maintaining a successful and productive workforce. There is simply no excuse for discrimination in the workplace, and any breach could be costly, with damages for discrimination cases remaining uncapped.
By law, all employers must take steps to prevent discrimination. ACAS, therefore, suggests that employers should:
- understand what the law says about discrimination and your rights and responsibilities;
- recognise the benefits of an inclusive and diverse workforce;
- put policies and procedures in place and keep them up to date;
- inform and train your staff and managers;
- create ways for staff to be heard and
- make it clear how staff can complain if discrimination happens.
