If an employee’s performance is described as “disappointing” by a manager at a time when they are suffering from kidney disease, is it discrimination arising from a disability?
R Cunningham v Financial Conduct Authority
Mr Cunningham was employed by the Financial Conduct Authority from 2010 in their Retail group, which itself has three teams – Retail Group 1, Retail Group 2 and Retail Group 3, as well as a Relationship Management and Strategy Team. The Retail Groups investigate cases, allocated in accordance with their importance or complexity.
Mr Cunningham’s role included interviewing suspects and witnesses, carrying out searches, reviewing evidence and preparing witness statements. As an Associate Lawyer, he would manage the conduct of Tier 2 and 3 cases and may manage a Tier 1 case.
After some time away from work following surgery on his hand in 2015 and a career break, he returned to work in December 2016. An occupational health report said he was fit to return provided some adjustments were made, including working three days in the office and two at home. These hours were reduced further in January 2017 when a suspected kidney problem was being investigated to allow him to rest.
Mr Cunningham informed his manager that he was suffering from fatigue arising from renal problems. He was later diagnosed with severe kidney disease which an occupational health report said “had an impact on all aspects of his normal functioning.”
Mr Cunningham asked for his workload to be made more manageable by taking him off a particular case that he had been working on, but his request was denied.
Some months later, an opportunity for a promotion arose; the successful candidate was to be the manager of the particular case that Mr Cunningham was working on. Mr Cunningham applied and was unsuccessful. The FCA told Mr Cunningham that he would be responsible for managing the case until further notice, presumably until the successful candidate was appointed to take over the matter. Mr Cunningham refused and said that he did not feel comfortable leading the case if he had not been successful in the promotion and suggested that working on the case put him under unnecessary pressure at a time when he was unwell.
In April 2017, Mr Cunningham was still involved in the case and was asked to prepare a board update, which was ultimately heavily criticised at the meeting. In June 2017 Mr Cunningham commenced a period of sick leave and did not return until February 2018. The same month, he attended his annual appraisal where he was awarded a score of one, meaning ‘below standard’. As a result he did not receive a pay rise or bonus.
Mr Cunningham brought claims for discrimination arising from a disability, indirect discrimination and failure to make reasonable adjustments.
The Employment Tribunal held that Mr Cunningham was discriminated against because of his disability, but his claims of indirect disability discrimination and failure to make reasonable adjustments failed.
It was found that Mr Cunningham’s low appraisal score resulted from poor board reports he wrote – one of which was labelled ‘disappointing’ by a manager – and his refusal to lead a particular case. The tribunal found that both of the problems identified were caused by his kidney disease. He was therefore treated unfavourably due to his disability.
The claims for indirect disability discrimination failed because the tribunal found that the provision, criterion or practice that the FCA adopted during its appraisal process did not put Mr Cunningham at a disadvantage. The same applied for the reasonable adjustments claim.
The tribunal will decide whether Mr Cunningham is entitled to compensation at a later hearing.
Following on from our alert last week, this is a further lesson to employers that an employee’s disability can impact on many other processes, such as appraisals or performance management.
It is important that employers consider whether any underlying disability is a contributing factor to any performance shortfalls.
If you have any queries in relation to discrimination or any other HR queries please contact our employment team on 01228 552600 or 01524 548494.