An Employment Tribunal (ET) at the London Central Employment Tribunal has made a finding of discrimination in relation to a senior employee of NatWest Bank, dismissed following a diagnosis of colon cancer.
Facts
Ms Adeline Willis (AW), had been employed by NatWest since 2013, earning £160,000 a year in her secondment role. Following a diagnosis of cancer in August 2019 and informing her manager Ms Pragnell (P) she attended the office twice a week and worked from home when having to attend hospital appointments.
AW was then advised by P that she would report to Ms Lambourne (L) from 3 September 2019, which AW assumed was temporary. Thereafter on 10 September 2019 P and her line manager Ms Williams (W) discussed AW with HR. A transcript of the recorded call showed they sought advice on terminating AW’s employment as they felt they could not rely on her, assuming she would be absent from work.
AW had been dialling into team meetings. On 28 October 2019, her first day back to the office after treatment, AW was informed by P, in the presence of colleagues, she should no longer attend the meetings and later advised by L the change of line management was permanent, which AW viewed as a demotion.
On 10 December 2019, P informed AW she would not be given her annual performance review. AW’s agreement was not sought. L later advised AW the decision was because she would be given a “bad number” in any scoring of her performance.
In February 2020, W and P spoke to HR about extending AW’s secondment on compassionate grounds, not making a business case for AW to return to the role at the end of her treatment. AW was then notified 28 February 2020, two days after surgery to remove a malignant tumour, of a one-month extension to her role and thereafter her employment would terminate effective 4 April 2020. AW’s replacement was appointed soon after.
Law
Section 15 of the Equality Act 2010 sets out:
A person (A) discriminates against a disabled person (B) if-
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim
Findings
The ET found that the telephone call about possible dismissal, only a few weeks after her cancer diagnosis, was “clear evidence of discriminatory intent” and AW had thereafter been treated unfavourably because of something arising from disability, contrary to section 15. It made findings of unfavourable treatment, finding none of the matters capable of being justified, as follows:
- Changing her reporting line;
- Excluding AW from weekly routine meetings with her previous line manager (both amounting to a reduction in workload, which required discussion with AW first);
- Denying her an end of year performance review;
- Dissuading her from applying for other jobs, misleading her that she would be kept in her role after recovery from her surgery (the ET found the decision not to make a case for AW to remain permanently in the role was because of her absences related to cancer, i.e. something arising from her disability); and
- Dismissing her (the bank’s decision being “tainted with discrimination”).
The ET also found AW had been unfairly dismissed, as the work AW was employed to do on secondment had not ceased or diminished so there was no basis for a redundancy dismissal.
Comment
Sean McEntee, Solicitor in our Employment team comments:
“This case highlights the need for employers to consider carefully the impact of a person’s disability, in this case absence. Treating someone unfavourably as a consequence of something arising from disability can lead to uncapped awards of compensation and can only be avoided if the employer can objectively justify decisions as a proportionate means of achieving a legitimate aim.
“Assumptions should not be made about the employee’s ability to perform their role, and an open and transparent dialogue with the employee is crucial.
“Where a disabled individual is being treated differently to colleagues, it is useful to clearly document the rationale with a view to being able to demonstrate legitimate aim and proportionate means, if required in the event of a later claim."
