Mammoth disability discrimination award in mental health case

Last month saw an eye-watering tribunal award made against London Borough of Hammersmith and Fulham. A total compensatory award of around £4.6 million was ordered against the Council (the respondent) for harassment, disability discrimination, and discrimination arising from disability. It has been reported that the respondent will appeal the level of this award.

Facts of the case

The claimant had been working in other council roles for most of her career before joining the respondent in November 2017. Prior to joining the respondent, she had been working on humanitarian assistance following the Grenfell tower disaster. It was her experiences from this time which led to her developing post-traumatic stress disorder (PTSD), which she continued to have symptoms of and be treated for during her period of employment with the respondent. She had also been diagnosed with ADHD in 2016.

The claimant entered a challenging role as Director of Public Services Reform, which was essentially a new role and involved budget constraints which the claimant found to be encumbering. While it’s clear that her relationships with senior colleagues were difficult at times, the tribunal saw no clear evidence that any performance concerns had been expressed before events in early May 2018.

The claimant had a severe panic attack in a pub while with colleagues in early May 2018. This led to the claimant needing medical assistance and intervention, and a period of sickness absence from which she never returned. It was during this period of sick leave that she received notice that her probationary period was to be extended.

The claimant succeeded in her arguments before an employment tribunal that the respondent had discriminated against her because of her disabilities (ADHD and PTSD) when they a) extended her probationary period in May 2018; and b) ultimately dismissed her from her role in August 2018.

Lessons from this case

It would be easy to assume that this kind of discrimination award must result from overt and extreme persecution of an individual, and that our own workplace could never fall foul of such a judgment. However, reading this case reveals that the respondent’s approach involved several classic and common pitfalls that many of us working in this area will be all too familiar with.

Here are some of the key areas where the respondent went wrong:

1. A failure to consider an employee’s stress risk

The claimant in this case came into the respondent’s employment following what was perhaps the most stressful period of her working life. She moved into another high stress position here, but it seems the risk of burnout caused by the high workload and demands of the role was not identified or explored. This was despite the respondent’s knowledge of her PTSD.

2. A lack of clarity over performance concerns

The tribunal found that the respondent had failed to express to the claimant that they had any concerns about her performance before they moved to extending her probationary period. They did not follow their own probationary procedure, which involved monitoring and checking in on a probationer’s performance. This placed them in a perilous position, particularly when the timeline indicated that the claimant’s disability-related sickness absence had begun before the decision to extend her probation. The tribunal joined these dots to infer that the claimant’s disability-related absence was the true reason for the extension of the probationary period.

3. Managers avoiding difficult conversations

A meeting on 2 May 2018 was supposed to be an appraisal/end of probationary review meeting with the claimant, however: “the respondent didn’t proceed with one because the claimant seemed downbeat and upset.”

By failing to have an open dialogue with the claimant about performance expectations throughout the probationary period, and by avoiding raising any concerns at this meeting, the respondent left the claimant in a position of having no idea whether or not her performance was up to standard. This was compounded by the apparently inconsistent decision to extend her probation.  

4. Failure to consider adjustments to processes for disabled employees

The respondent was heavily criticised by the tribunal for failing to consider (with the assistance of occupational health) whether their approach to extending probation, or eventually opting to dismiss, could be altered in any way to account for the claimant’s known disability. While the claimant’s job was stressful the respondent failed to explore whether someone with the claimant’s condition could eventually return to her role, and failed to consider any possible reasonable adjustments to her duties.

5. Knee jerk reaction to dismiss

Instead of considering further adjustments, it appears that the respondent felt pressurised by having an absent employee in an important strategic position. Instead of engaging or attempting to engage in consultations with the claimant, the respondent opted to plough ahead with the dismissal. A failure to meaningfully engage with the claimant or with other options to dismissal was a high-risk approach in the context of an employee who was within the first few months of a disability-related period of long-term sickness absence.

The Birketts view

Managers under financial and other pressures, and without proper contemplation of the level of risk associated with dismissing an employee with a known disability, often forego process and jump to unsafe decisions. In recent years, we have seen some striking disability discrimination awards of compensation made by the employment tribunals. While these are still the exception rather than the rule, even a lower award for disability discrimination can damage an employer’s internal and external reputation.

Preparing managers and prospective managers with the tools to not only spot, but also navigate, these pitfalls is vital. Birketts’ Shaping Excellence Team has worked with Tom Oxley of Bamboo Mental Health to create a new course “Managing Mental Health: critical and compassionate conversations” designed to provide attendees (HR professionals or managers) with the insight and awareness to side-step these risks. Click the link for more information and to book onto our  upcoming sessions.