In a recent case, an employment tribunal heard how an employee, who worked for a large US technology company, had begun to experience symptoms of cancer (undiagnosed at the time) and wrote some defensive emails to his manager in response to evidence he had seen stating that the reason for his promotion (without an accompanying pay rise) was to make him look more senior compared with a colleague. He sent these emails whilst in an agitated state and suffering from the side effects of steroid medication. A few days later the employee highlighted to the HR director that his medication had had an effect on his mood and emotional response to some situations. He later made an appointment with occupational health and it was deemed appropriate that he take time off work to rest and allow the level of steroids in his system reduce.
No formal concerns were ever raised before and the employee had received good performance ratings in performance reviews. However, without any prior warning, the employee was called into a meeting with his employer’s HR Director and told that the company could no longer employ him. No reason was given. The employee was told that he had 20 minutes to leave and was escorted with his personal belongings from the building. Immediately afterwards, his line manager sent out an email to the senior leadership team informing them that the employee had been “let go”.
At the time of his dismissal the employee had been employed by his employer for just over 36 years, the majority of his working life and worked in a senior managerial role. A few weeks later and coinciding with the employee’s start of chemotherapy following a cancer diagnosis, the company then attempted to instigate a post-dated dismissal process in an attempt to show that they had followed a fair procedure. The employment tribunal found this to be a sham as the chair of the second “dismissal meeting” was merely the messenger, put forward by the employer to give the impression that the process of dismissal was fair overall.
The employment tribunal upheld several of the employee’s claims including discriminatory dismissal and harassment on the grounds of disability, once the employer knew of his cancer diagnosis. In finding that the dismissal was unfair, the tribunal found that there had been no genuine attempt by the company to look at matters afresh and consider the employee’s mitigating health circumstances. The dismissal was outside the range of reasonable responses. The tribunal held: “No reasonable employer would have acted in the way the Respondent did in dismissing an employee who had spent 36 years working for the company”.
The employment tribunal concluded that the employee’s line manager, who had made the decision to dismiss, had tried to suggest that the dismissal was rooted in a breakdown of trust and confidence. The tribunal concluded that the employee’s line manager had decided that he wanted the employee to go, and the only way this could be done quickly was to dress it up as a breakdown in trust and confidence. The tribunal described this as a “ruse”. The employer had failed to prove that a breakdown in trust and confidence was the reason for the dismissal.
Expert psychiatric evidence determined that the severe depression and anxiety the employee suffered was caused by the treatment he was subjected to by his employer. The evidence confirmed that the employee had not been able to work because of this or in the foreseeable future some 3½ years on, if at all.
At the remedy hearing where the tribunal made the compensation award, cross examination revealed undisclosed documents, destroyed evidence and significant procedural defects, including a secret meeting at which the decision to dismiss was confirmed. The tribunal awarded the employee £2,567,831.97, the second largest award for disability discrimination ever made by a tribunal in the UK. In making an award of this magnitude the tribunal recognised the career loss and made an aggravated damages award, which is rarely made, to reflect the gravity of the employer’s conduct.
It is very rare for a tribunal to make an award of this sum due to discrimination. The award reflects the gravity of the employer’s actions, the employee’s very long service and the severe impact of the employer’s actions on the employee, including the low prospects of him being able to work again in a similar role. Where an employee’s performance or conduct is impacted by ill-health, or the evidence suggests that it might be, the employer should conduct a reasonable investigation before deciding on the correct response, including obtaining medical evidence with the employee’s consent. A more appropriate procedure where an employee’s conduct or performance is impacted by ill-health, will be an ill-health capability procedure.
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