Worker loses M&S claim

A SALES assistant who claimed retail giant Marks and Spencer treated sick staff like “criminals” has had her age and sex discrimination claim thrown out.

Laurence Cawley

A SALES assistant who claimed retail giant Marks and Spencer treated sick staff like “criminals” has had her age and sex discrimination claim thrown out.

Susan Smith, 55, of Bury St Edmunds, joined Marks and Spencer in 1997 and works at the Bury branch of the high street store.

At an employment tribunal earlier this month, Mrs Smith, of Links Close, told the hearing that despite having been off work with shingles last year she was threatened with dismissal if she took more time off work.


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She claimed the firm's systems for dealing with absences from work were unfair to women rather than men, and to those aged between 50 to 59 rather than younger workers.

The hearing heard how Mrs Smith was off sick from work three times, once with shingles, between July and November last year. This, the tribunal was told, triggered an “absence review” in which Mrs Smith was given a written warning for unacceptable levels of absence. She was told she would not get a pay rise or a bonus because of the written warning. Mrs Smith then fell ill once again with a further bout of shingles before being away from work with stress and exhaustion.

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Her claims were strongly denied by Marks and Spencer.

In the tribunal's verdict, employment judge Brian Mitchell said Mrs Smith's claims had failed because no evidence of age or sex discrimination caused by Marks and Spencer's sickness absence policy had been put before the tribunal.

Although more general statistics, including gleaned from the Health and Safety Executive, had been presented to the tribunal, Mr Mitchell said they could not be taken into account because they had little bearing on the case.

“The pool for comparison must be the Marks and Spencer employees and no material has been placed before us to show how many males and females activate the trigger points (numbers of absences in a given time period that would lead to an absence review between a worker and their employer) under the absence procedure or how many of those who trigger the procedure fall within the age group of 50 to 59.

“We do not, therefore, find that these generalised statistics obtained for other purposes assist us in drawing an inference that this policy impacts adversely within Marks and Spencer on women as opposed to men or those in the 50 to 59 age group as opposed to any particular younger age group.

“For those reasons, the claim cannot succeed.”

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