Employee awarded £1.2m after employer mishandles sickness absence – how can employers avoid getting it wrong?

By Emily Foster

Trainee Solicitor

23 September 2025

Insights News

In the recent case of Wainwright v Cennox plc, the Employment Tribunals considered a situation where an employee discovered that her job had been given to a colleague, via LinkedIn.   At the time she was absent to undergo chemotherapy.

This case raised issues of disability discrimination and constructive unfair dismissal.  Ms Wainwright’s claim was successful and she was awarded compensation of £1.2 million.  In this article we consider the facts of this case and the possible consequences for employers who fail to appropriately manage periods of long-term sickness absence.

Facts:

Ms Wainright, the Head of Installation at Cennox plc, took long-term sick leave when undergoing chemotherapy for stage 3 breast cancer.  Cancer is a deemed disability under the Equality Act 2010.

In Ms Wainwright’s absence, her colleague temporarily assumed her role to ensure continuity.  When this colleague received a job offer from a competitor, Cennox appointed her permanently to the Head of Installation role in order to retain her.

This was done without reference to Ms Wainwright, on the basis that there would be enough work for two Heads of Installations, once she returned to work. Ms Wainwright only discovered this through LinkedIn. When Ms Wainwright inquired about this appointment, Cennox’s HR Director wrongly assured her that her role would be unaffected. Ms Wainwright was not informed that the new role was permanent or about the assumptions behind creating it, because the HR Director did not wish to upset her during treatment.

Upon returning to work, Ms Wainwright was presented with a revised job description and an updated organisation chart reflecting the shared leadership structure. Ms Wainwright felt the redistribution of responsibilities amounted to a demotion and that this was connected to her cancer diagnosis and prolonged medical absence.

Ms Wainwright raised a formal grievance, asserting that she had been misled during her leave and effectively blocked from resuming her original role. The grievance was not upheld and subsequent delays during the appeal process, led Ms Wainwright to resign with immediate effect. The resignation letter specifically referred to the delay in handling the grievance process which she described as the “final straw”.

Ms Wainwright brought claims in the Employment Tribunal for constructive unfair dismissal and disability discrimination.

First Employment Tribunal Decision (ET):

The Employment Tribunal dismissed Ms Wainwright’s claims of direct disability discrimination, victimisation, wrongful dismissal, and constructive unfair dismissal. The Tribunal found that Ms Wainwright’s perception that she had been demoted was inaccurate, and that ultimately it was this reason alone which led to her resignation. It was on this basis that the constructive dismissal claim failed because no fundamental breach of contract by Cennox was identified.

However, the claim for “discrimination arising from a disability”, was upheld. Under section 15(1) of the Equality Act 2010 (EqA 2010), “discrimination arising from disability” occurs where both: A treats B unfavourably because of something arising in consequence of B’s disability; and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

In the case the “something arising” was Ms Wainwright’s sick leave.  The unfavourable treatment was firstly, that during her sickness absence, a colleague was given her role, and she was wrongly assured this would not affect her position; and second, that a restructure had taken place and she had been misled about what had happened in her absence.

Ms Wainwright appealed the decision on whether she has been constructively dismissed.  In a claim of constructive dismissal, the employee must resign in response, at least in part, to the employer’s fundamental breach of contract.  Ms Wainwright argued that the Tribunal ought to have analysed whether the acts  of discrimination were capable of amounting to repudiatory breaches and whether Ms Wainwright had treated them as such, or instead whether she had accepted the employer’s conduct and affirmed her contract.

Employment Appeal Tribunal (EAT) Decision:

Ms Wainwright’s appeal was successful.  The EAT found that the Employment Tribunal had failed to properly assess whether the Company’s discriminatory conduct could have breached the implied term of mutual trust and confidence, and whether those breaches influenced her decision to resign.  The case was remitted to a different Employment Tribunal to reconsider this point.

Second Employment Tribunal Decision:

A different Tribunal found that Ms Wainwright had been constructively unfairly dismissed, and that the dismissal was also discriminatory.

The Tribunal reviewed Ms Wainwright’s resignation letter and found that her decision to resign was directly linked to the poor treatment she had experienced. This included being assured during her sick leave that her role would remain unchanged, only to later discover her colleague had been permanently appointed to her position. She felt misled by the Company about the nature and impact the restructuring would have on her position.

In particular, the Tribunal concluded that Ms Wainright had been lied to, and this had broken the implied term of mutual trust and confidence between Ms Wainwright and Cennox. Furthermore, the Company lacked a “reasonable and proper cause” for its actions.

In addition, the Tribunal found that Ms Wainwright had not accepted her employers conduct and affirmed her contract. Her attempts to seek clarification and raise a grievance were seen as efforts to resolve the issues, not as acceptance of the situation.

Compensation:

Compensation in discrimination claims is uncapped.  Ms Wainwright was 42 years old when she resigned, with 17 years’ service. Her salary was £85,000 per annum and received annual bonuses of up to £5,000.

Ms Wainwright received:

• an award for injury to feeling of £40,000, with the Tribunal finding that the discrimination she had been subjected to had had a severe impact on her mental health.
•   five and half years losses of £399,317.17 which included her reasonable expenses for setting up and running her own business. 
• compensation for a further six years of £294,863.64.
•  £9,187.50 as a basic award, £900 for loss of statutory rights and £19,235.02 in interest.

After grossing up for tax, the total compensation awarded was £1,224,861.94.

Key Points for Employers:

This decision provides several important lessons for employers where they have absent employees:

Ensuring Open and Honest Communication with Employees:

Employers must be open and transparent with employees on long-term sick leave, especially when changes are being made that affect their role. During her sick leave, Ms Wainwright’s manager may have had good intentions not to discuss the changes to her role, however, such an omission was considered “clumsy and misguided” by the ET.

Employers may feel it insensitive to discuss such issues with employees, particularly when they are absent due to illness, however, providing inaccurate or misleading information may amount to a repudiatory breach of contract allowing employees to treat themselves as constructively dismissed.

If roles are restructured during an employee’s absence, employers should consult openly, explain business reasons, and avoid actions which may appear to sideline or diminish an employee’s role. In this case the Employment Tribunal accepted that the employer had some good business reasons for making changes to Ms Wainwright’s role, but keeping her in the dark about this was not acceptable.  Regular catchups during an employee’s absence should not only be used to check on wellbeing but should keep employees informed of relevant developments.

Handling Returns After Long-Term Sick Leave:

Although an employee on long term sick leave doesn’t have an automatic legal right to return to the exact same role, employers must manage such absences fairly and reasonably. This includes actively considering whether the employee can return to their original position. If the role remains available and the employee is medically fit to return to their duties ( with or without reasonable adjustments) then the employer should support their return. This is applicable even if a temporary replacement is performing well and the organisation would prefer them to retain the post.   Where an employer needs to consider changes to the role of an employee on long term sickness absence, it must approach this in the same way as any other employee and engage in proper consultation.

Handling Grievances Promptly and Fairly:

For Ms Wainwright, the delay in Cennox in dealing with her grievance was the last straw, completely eroding her trust and confidence in her employer. Employers should ensure they support employees by providing adequate resources and respond to issues affecting their wellbeing without undue delay. It is an implied term in all employment contracts that employers must reasonably and promptly allow employees to raise and resolve genuine grievances. Failure to follow a grievance procedure -contractual or not- may breach the duty of trust and confidence, potentially justifying a claim for constructive dismissal.

This is a complex area of employment law, particularly where issues of discrimination, constructive unfair dismissal, and long-term sickness absence intersect. Outcomes are highly fact-specific and can vary significantly from case to case. If you require further advice on these matters, please contact Taylor Walton’s Employment Law team here.

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Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.