Record breaking compensation ordered in discrimination claim

Disability discrimination case background

Mrs Wright-Turner suffers from ADHD. In October 2017, shortly before commencing a role as Director of Public Services Reform at London Borough Council of Hammersmith and Fulham (the Council), she was diagnosed with PTSD following providing humanitarian support to victims in of the Grenfell fire as part of her previous role at another Council. She notified the Council of her conditions when commencing the role.

Her role was a senior one and involved setting up a new department. The new department was under resourced, and the Claimant was forced to work extremely long hours, including weekends. By April 2018 her home life was suffering, and she was experiencing exhaustion and anxiety but felt unable to take holiday or sick leave before her probationary period ended on 11th May 2018.

On 2nd May 2018 the Claimant’s manager raised concerns about an “over familiar” email the Claimant had sent to a more senior colleague. She was accused of not disclosing her ADHD in the recruitment process. The Claimant felt she was being accused of deliberately concealing her conditions. She was asked if she needed any workplace adjustments and was told she would be given a buddy, which the Claimant took to mean she was considered incapable of performing her job and was being singled out for additional scrutiny.

During the chronology of events, the Claimant visited a pub with colleagues after work, during which she had a panic attack and emotional breakdown in the toilet. Her concerned colleagues took her to A&E, during which she was assessed and found to be depressed, suicidal and traumatised but not intoxicated.

A senior HR colleague and close colleague of the Claimant’s Manager, who was at the pub during the incident, messaged the Claimant’s Manager later that evening to say the Claimant was “OK. It’s not an emergency, she’s had a lot to drink”, which was misleading and may have led to the manager underestimating the Claimant’s condition.

The Claimant was signed off by her GP for a month with PTSD and acute anxiety. The Claimant told her employer that her GP had advised a complete break and no contact with work during this time.

On 17th May 2018 (after the end of her probationary period) the Claimant received a letter from her manager informing her that her probation period had been extended by 3 months (to 9th August 2018) on the basis “she had been unable to have a conversation about the areas of progress”. This was despite knowing the Claimant had remained on sick leave during this time. In extending her probation, the Claimant’s manager failed to follow any of the steps which the council procedures stated should be followed, such as having performance discussions first and allowing the Claimant to put her side of things, or to consider if extension of probation was appropriate in the circumstances.

The Claimant remained off sick for three months. The Claimant’s Manager, conscious of the probation end date, decided to dismiss her on the basis the Claimant had not been able to improve her performance as she was on sick leave, there was no end in sight to her sick leave and the Claimant’s role was high profile and there were expectations for her department to deliver which did not allow for the status quo to continue. This was despite the Claimant still being given no opportunity to discuss or improve her performance as she remained on sick leave.

The dismissal letter informed the Claimant her employment would terminate at the end of her probationary period on 9th August 2018. The termination letter referred to budget and timescale issues but lacked detail about how the Claimant had failed her probation and why her probation was not instead being extended, and did not reference the Claimant’s sickness absence. She was not given an opportunity to make representations in her defence or to appeal the decision, despite the Council’s procedures requiring otherwise.

On 1st August, the Claimant raised a grievance. On 2^nd August the Council sent the Termination letter, which did not reference the grievance, and which was back dated to 31st July 2018 to attempt to make it seem that it had been sent before the grievance was received.

On 15th August the Claimant raised a second grievance in which she alleged discrimination and harassment, failure to respond to her grievance and deliberately backdating the termination letter. She also requested to appeal the termination decision. The Council did not respond to either of her grievances or her request to appeal their decision.

The Claimant then brought various claims in the Employment Tribunal, including disability discrimination and harassment which included that:

• Her probationary period was extended while she was signed off sick, without advance notification that it would be extended or that her performance required improvement or informing her what areas of her performance required improvement, and without giving her chance to discuss or comment on the decision, in breach of the Council's policies.
• She was dismissed without explaining the reasons she had failed her probation and without first giving her an opportunity to put her case, without any warning that she was at risk of dismissal, or offering any opportunity to appeal the decision, in breach of Council's policies.
• The Council failed to deal with her grievances of 1st and 15th August 2018, or her request for an appeal.
• The Council’s actions had significantly affected her mental health, career prospects and financial position such that her marriage had fallen apart, her house was being repossessed and she was unlikely to be able to work in a senior Council role again.

 

Employment Tribunal decision

The Tribunal found that Ms Wright-Turner was suffering from a disability, namely ADHD and PTSD, which the Council was aware of. It found that extension of her probation and the manner of her dismissal were acts of direct disability discrimination and acts of discrimination arising from her disability.

The Tribunal awarded an uplift in damages for the Council’s failure to follow fair procedures as set out in the ACAS Code.

Other aggravating factors included the attempts by some Council witnesses to deliberately mislead the Tribunal about the facts of the case.

The Tribunal found that the Claimant’s health had been so significantly damaged that it was unlikely she would work again, so their award covered her future losses of salary up to retirement (the Claimant was 52 at the time).

Finally, the Tribunal therefore made an award for injury to feelings which they felt reflected the severity of the psychiatric injury suffered by the Claimant as a result.

In total the Tribunal issued an award of £4,580,587.39. The Council has stated it intends to appeal the size of the award.

The previous highest compensation award made was £4.5 million for sex and race discrimination claim by a doctor, involving career long losses.

 

Tips for employers

Although the Claimant was still in her probationary period and had less than 2 years of service (so could not bring unfair dismissal claims), she had a protected characteristic, namely her disabilities. Discrimination claims do not require a minimum length of service.

The council should have considered the risks of disability discrimination claims and followed a fair process before deciding to either extend probation or dismiss the Claimant. This should have included considering whether it was appropriate to make reasonable adjustments to the standard process.

 

How employers can avoid potential discrimination claims

1. Take legal advice early if there may be protected characteristics involved.
2. Use the probation period fairly and wisely. Make sure managers are following a review process during probation – not waiting until the end of the process to raise concerns.  Meet regularly during probation to discuss issues and concerns and remember, probation is a two-way process.
3. Keep adequate records of meetings at which performance is discussed and key decisions (such as to extend probation or to terminate employment) are made or discussed with the individual. Follow up on action plans or steps to take and set a timetable for review.
4. Be sensitive to the level and type of contact which is appropriate if someone is signed off for mental health reasons.
5. Follow a fair process as set out in the Employer’s procedures when taking key employment decisions such as to extend probation or to dismiss.
6. If the employee has a potential disability, consider if any reasonable adjustments would be appropriate, such as delaying the process till they are well, allowing the individual more time to respond, allowing them to make written representations instead of requiring them to attend a meeting in person, or allowing a wider range of companion.
7. When in the Tribunal, witnesses should give an honest account of what transpired to the best of their recollection. No lying under oath!

 

HR’s role – HR Masterclass

HR play a hugely important role in the on-boarding and probationary period. To help HR colleagues understand their role and the risks in such processes as probation or managing performance, book your place on the HR Masterclass 2024. A course written and designed for HR professionals, focusing on the key areas they need to be able to support managers through core HR processes.  Book now to secure your place and take advantage of our early bird offer!

For advice on any of the points above, or assistance with amending policies or procedures or with training, speak to our team of experts on [email protected].

 

Employment law webinar

If you are interested in the most recent changes to Employment Law, join our April webinar, where we take a dive into some of the tricky HR issues which flow from the April changes and consider what HR should be thinking about and where the key risks might be.​​