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2.5 million reasons not to overlook disability

Is it reasonable for an employer to dismiss an employee due, in part, to the effect of medication they were taking for a medical condition? Is such treatment disability discrimination?

If an employer is critical of an employee’s non-attendance at meetings, where the reason for not attending is a disability, is it disability discrimination?

These questions and more were considered in a recent employment tribunal case with a sizeable sting in the tail for the employer.

Barrow v Kellog Brown & Root (UK) Limited

The Claimant was employed by Kellog Brown & Root (UK) Limited (“KBR”), a large technology company working in areas such as Government Services, Energy Services and General Infrastructure on a global scale. His employment started in September 1980 and continued until he left in August 2000, before returning in March 2002 until his dismissal in December 2017.

In January 2017, the Claimant was promoted from level 70 to level 75 but did not receive a pay increase beyond a standard 4% allocated for the previous year’s performance combined with a routine “market related” adjustment. Sometime later, the Claimant noticed that he was actually at level 80, which was important as an indicator of stature and seniority. At this point he was concerned that he had not been informed of this change, nor had he been provided with an amended contract or received a pay rise beyond that received for the adjustment to level 75. The Claimant raised this and KBR explained that because he couldn’t yet be promoted to vice president (level 90), the company brought into use the “previously dormant and unused” level 80 to provide an alternative promotion option in order to secure participation in a bonus scheme at the same higher percentages as for vice president.

In September 2017, the Claimant went to see his GP about a skin condition which had worsened over several months. The Claimant was prescribed creams and tablets, having become irritable and distressed. By November 2017 his condition had not improved and had started to affect his ability to concentrate at work. He was prescribed a two-week course of Prednisolone, a strong oral steroid, which he began taking from 2 November 2017. The Prednisolone built up in the Claimant’s system and started to affect his behaviour. He was hyperactive and energetic, and had difficulty sitting quietly to concentrate on his work. The Claimant made further queries regarding the implementation of his promotion at this point and was provided with a paper copy of the approval for his promotion. The Claimant became upset as it suggested he was promoted to make him look “more senior” than another colleague. He felt that this was a cynical justification for promotion and said he felt “abused” to be promoted without a pay increase because promotions were infrequent.

By 11 November 2017 the Claimant’s emotions and state of mind were “highly influenced” by the steroids, which he had been taking for more than 10 days and were said to be at maximum effect. He also felt that he had been feeling, seeing or hearing things which did not exist. The Claimant was referred to occupational health and attended an assessment on 16 November 2017 which concluded he was fit for work and his main cause for stress could be dealt with by management directly. His GP also said he would be fit to work once the steroids had left his system.

The Claimant attended a review meeting on 30 November 2017, which the tribunal heard was “rushed” and cut short. The Claimant felt there had been inadequate discussion about his objectives, but his concerns were dismissed. The Claimant was then dismissed on 6 December 2017 at a short meeting, with an email stating the reason for this being due to the Claimant’s poor performance over the last 18 months, combined with behaviour not commensurate with his leadership role.

Following the dismissal, KBR attempted to reach a financial settlement with the Claimant but was not successful. In January 2018, the Claimant was diagnosed with a form of lymphoma. On 8 March 2018, he was then invited to a meeting with KBR to discuss matters relating to his employment. The parties at this point appear to have lost sight of the earlier dismissal. The Claimant was due to start chemotherapy and was therefore unable to attend the meeting, but his solicitors sent a letter detailing how the treatment could impact his ability to attend meetings on certain days or cause him to cancel at short notice.

On 20 April 2018, the Claimant submitted a formal grievance and attended a grievance meeting on 30 April 2018. Following the meeting and a subsequent investigation, the Claimant was formally dismissed again because of a breakdown of trust and confidence.

The Claimant proceeded to bring claims for unfair dismissal, direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment and victimisation.

Decision

The Employment Tribunal found that the dismissal was unfair. Any investigation carried out in relation to the Claimant’s concerns were a “sham”.

The Employment Tribunal found that KBR had discriminated against the Claimant by treating him unfavourably in relation to his inability to attend meetings due to his cancer diagnosis, had harassed him but had not failed to make reasonable adjustments or victimised him.

At the hearing cross examination revealed undisclosed documents, destroyed evidence and significant procedural defects on the part of KBR and a secret meeting held by senior KBR employees at which the decision to dismiss the Claimant was made.

Whilst the facts are unusual, it is the award which makes this case noteworthy. The claimant was awarded just over £2.5m.

Comment

The award in the above case is the second highest discrimination award. The tribunal accepted that this was one of the rare cases where it was appropriate to award career-long loss in addition to a significant injury to feelings award as the Claimant was 60, had cumulatively worked for KBR for 36 years. An award for aggravated damages in the sum of £7500 was also awarded due to KBR’s conduct.

The full judgment is worthy of reading to understand some of the nuances; however, what is clear is that a decision was made to terminate the Claimant’s employment which created a blinkered mentality with the Respondent not fully considering the disability-related issues or concerns raised by the Claimant.

In theory, decisions about dismissal should not be pre-determined. In practice, they often are. Where a notional decision has been made that an employee will be departing, it is even more important for the employer to ensure the process is fair and any disability-related issues are handled correctly.

If you have any queries in relation to disability discrimination or any other HR query, please contact our employment team on 01228 552600 or 01524 548494.

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