Disability Discrimination claims can be costly

The case of Wright-Turner v LB Hammersmith & Fulham highlights that if a disability discrimination claim fails; it can be extremely costly to the employer and have significant reputational consequences.

Background

The Claimant was employed by the London Borough of Hammersmith and Fulham between November 2017 and August 2018 as Director of Public Services Reform. Prior to this she had been supporting the response to the Grenfell Tower fire in June 2017.

The Claimant was diagnosed with PTSD in October 2017 and had previously been diagnosed with ADHD in November 2016.

On her first day in her new role, the Claimant advised the Chief Executive that she had secondary PTSD as a result of her Grenfell work and that she was undergoing counselling.

It was alleged that concerns about the Claimant’s performance were discussed in a meeting on 2 May 2018. The tribunal “did not find it likely” at this point that the Chief Executive raised any concerns about the Claimant’s performance or indicated “that she had any intention of extending the Claimant’s probation on this date”.

The Claimant was accused of not disclosing her ADHD during the recruitment process. The held that “it is likely that the claimant found this both humiliating and offensive”.

The Claimant was subsequently signed off work for a month, which was then extended. She received a letter on 10 May 2018 informing her that her probationary period had been extended by three months. The tribunal found that this letter had been deliberately backdated to make it look like the decision to extend her probation period had been made before the Claimant was signed off work for her mental health.

In August 2018, the Claimant received another letter, informing her that her employment had been terminated. The reason was that the Respondent did not think she would be able to satisfactorily complete her probationary period.

The Claimant submitted an appeal against her dismissal and a grievance via her solicitors on 15 August 2018, asserting that the Chief Executive had not raised any significant concerns about her performance or capability.

The Claimant brought claims for disability discrimination and harassment.

The Decision

The Employment Tribunal upheld in part the Claimant's claims and held that the employer had unreasonably failed to comply with the Acas Code of Practice on Disciplinary and Grievance procedures in relation to the employee's grievance and her dismissal.

The Employment Tribunal said the decision not to extend the Claimant’s probation was “unfavourable treatment that was related to the claimant’s disability-related sickness absence”. The Claimant was neither warned that she was at risk of dismissal, nor given any opportunity to make representations before this decision was taken. The Claimant was not given any opportunity to appeal.

Remedy

At the remedy hearing in January 2024, the Employment Tribunal heard evidence that the impact of the dismissal on the Claimant had been extremely severe. Her health had been damaged to the extent that she would never work again; her marriage had ended, and repossession proceedings had been started because she had been unable to pay mortgage arrears.

The tribunal awarded the Claimant a total of £4,580,587.39 in damages. The Employment Tribunal held that she had been harassed and discriminated against. Exemplary damages were also awarded, and are the only category of damages available to an Employment Tribunal which has the express purpose of punishing conduct – that which is “oppressive, arbitrary or unconstitutional.” Awards for exemplary damages are incredibly rare.

Comment

This case highlights the importance of following processes and procedures during the probationary period and particularly where an individual has less than 2 years’ service and has been signed of work on health grounds. The absence of following any procedure resulted in a finding of failing to follow the ACAS code of practice and resulted in an uplift of £271,479.85.