Case Law Update: Sithirapathy v PSI CRO UK Ltd and others

The Employment Tribunal (ET) has dismissed a series of claims concerning discrimination, unfair and wrongful dismissal, harassment, and more, in order to avoid encouraging ‘a culture of hyper-sensitivity’.

The claimant brought 42 claims to the Employment Tribunal.

The facts

The claimant worked as a lawyer for PSI CRO UK. She was offered a role at the company’s branch in Switzerland but was told that her age “will prevent [her] from commanding a higher salary”. Due to unrelated personal reasons, she declined the role.

She cited that her employer had asked what her personal reasons were for declining the role. Allegedly, they went on to say that she didn’t have a boyfriend, wasn’t married, nor did she have any children. The claimant told the ET that she was shocked by her employer’s response. She didn’t know that they knew so much about her personal life.

Later that year, the claimant applied for a promotion to Senior Legal Counsel. She was told that she was not ready to undertake the role. This was because she wasn’t performing at the same level as existing Senior Legal Counsels. She was also told that her young age prevented her from being promoted.

The following year, she accepted a non-legal role in Switzerland. Her role in the UK was terminated shortly before she began the new one. The ET didn’t accept that this was to prevent her from having continuous service.

One month after moving to Switzerland, the claimant’s new role was terminated due to a “reorganisation” of the team. Following this, she tried to return to her role in the UK branch. However, she was unsuccessful because the role had already been filled.

The claimant brought 42 claims to the ET, including but not limited to:

• Wrongful dismissal
• Unfair dismissal
• Breach of contract
• Age discrimination
• Sex discrimination

What the Employment Tribunal decided

The ET decided that her claims could not be upheld. With regards to wrongful and unfair dismissal, her contract was terminated outside of the UK. Also, the contract came to an end by mutual agreement. The Swiss courts found that the law of the land had not been breached either.

Regarding the discrimination, breach of contract, and harassment claims, the ET agreed with the employer’s argument. The comments made were meant to explain to the claimant that her personal circumstances would not be a problem at the Swiss branch.

The ET judge went on to say that:

“The comments were unfortunate and awkward. However, we bear in mind the importance of not encouraging a culture of hyper-sensitivity or of imposing legal liability to every unfortunate phrase. We have concluded that, in this case, taking into account the context of the discussion, these comments did not cross the line such that they amounted to unlawful harassment.”

What this means for employers

This case doesn’t set a precedent and isn’t binding on other courts. However, it does offer an alternative perspective on employee relations.

From an HR perspective, when dealing with a similar issue, you should act cautiously when communicating with an employee. Essentially, ‘watch what one says and how’. By doing so, employers can reduce the risk of having to deal with tribunal claims of this kind.

Now, it feels the scope for determining what is discriminatory behaviour has been widened. There is a particular focus on avoiding a culture of “hypersensitivity”.

In this case, there may be grounds for appeal. With this in mind, you should continue to carefully consider your wording. One badly used phrase could impact your workforce, and consequently your business. A different tribunal may reach a different conclusion.

Consider if this is a risk worth taking in the first place.

Expert support

Be prepared for the implications of this ruling. Contact Croner today. We help you make sense of the rules affecting your business and help you stay on the right side of the law.

Speak to a Croner employment law expert. Call 01455 858 132.​