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Employment Law Case Update: Direct and Indirect Discrimination

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Is your workforce a diverse one? Are you confident that your managers and team members are not discriminatory? These are two key factors to consider when running a business; our Employment Law team here reviews a case in which diversity was at the heart of a direct and indirect sex discrimination claim, with lessons for employers on how to avoid a similar situation. 

Ms Adrienne Liebenberg was director of sales, marketing and innovation at DS Smith from November 2016 until her dismissal in December 2018. During her time with the company, she was tasked with improving communication between the DS Smith central team and its regional teams.  In July 2017, Ms Liebenberg’s line manager, Mr Rossi, expressed concerns about her attitude. He wrote in an email that she had a “high-class” attitude and would not engage with employees of a “lower” level. Nevertheless, he still supported her because he believed she had a lot to contribute to the business.

In July 2017, Ms Liebenberg agreed to a sale for the Italy regional team without first consulting with the regional managing director. This caused some friction and reflected the recurring problem of poor communication between the central team and regional managers.

Ms Liebenberg also struggled to work within the budget constraints she was given. In July 2017, she had drafted a new organisation structure which Mr Rossi said was unrealistic for the company at that time. She also pushed for more recruitment and blamed budget restraints when she did not meet her goals.

At a professional development review in April 2018, Mr Rossi told Ms Liebenberg that he expected her to collaborate with her colleagues and not blame shortcomings on them or on budget constraints. Ms Liebenberg apparently did not react positively to the feedback.

In September 2018, when senior women in DS Smith were interviewed for gender diversity research most, including Ms Liebenberg, said they felt gender was “an obstacle to progression” with about half saying they had witnessed or experienced inappropriate behaviour related to gender. Ms Liebenberg mentioned in her interview being called “little lady” and “girlie.”

Meanwhile, Mr Rossi had decided that the difficulties with Ms Liebenberg’s attitude were not going to improve. In November 2018, Ms Liebenberg was offered a settlement agreement to leave her employment with DS Smith. She rejected the agreement and accused the company of sex discrimination. A week later, Mr Rossi wrote a letter to Ms Liebenberg terminating her employment. She appealed her termination claiming she had been dismissed because she was a woman and had raised concerns regarding gender diversity at the company. Her appeal was dismissed.

Ms Liebenberg then filed a claim with the Employment Tribunal (ET) claiming direct and indirect sex discrimination.

Regarding the claim of direct discrimination, the ET considered the fact that reasons given by the company for her dismissal – poor attitude and failure to work within the budget – had “been raised throughout [her] employment”. Ms Liebenberg had been told on multiple occasions by different people that she needed to work more collaboratively - one of the main points Mr Rossi raised at her performance review. The ET therefore concluded that Ms Liebenberg was dismissed for the reasons given by the DS Smith and not because she was a woman.

Ms Liebenberg also claimed indirect discrimination. She claimed she was not regarded as a team player because she did not want to bond over “wine, dinner and football”. The ET did not accept this, finding that complaints over Ms Liebenberg’s leadership style were not about her failure to “bond” with the team over football but rather that she failed to work within a set budget and preferred to apportion blame when things went wrong rather than work as a team to resolve the problem. She was not put at a disadvantage for being a woman and so the claim for indirect discrimination also failed.

Though Ms Liebenberg was ultimately unsuccessful in her claim, this case does contain a word of caution for employers. The ET stated in its judgement that “the extent of the lack of gender diversity at the senior levels of DS Smith is unacceptable and needs to be addressed”. There were very few women in leadership roles in the company, and many of those did not regard DS Smith as an inclusive workplace. Employers should frequently review the level of gender and racial diversity in their company. If there’s a lack of diversity in leadership roles, this may present an obstacle to the career advancement of certain groups of people - and leave employers open to diversity claims.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.