Knowledge

In a decision of the English employment tribunal issued in March 2024, in the case of Mrs R Wright-Turner ("Mrs R") v London Borough of Hammersmith and Fulham ("Hammersmith") and Ms K Dero 2206237/2018, Mrs R walked away with what is said to be a record-breaking compensatory award of approximately £4.6 million for claims of disability discrimination, harassment and dismissal in breach of the ACAS Code of Practice on Disciplinary and Grievance Procedures (the "ACAS Code"). She had been in the post of Director of Public Services Reform for Hammersmith for less than nine months, between November 2017 and August 2018.

Mrs R had been diagnosed with ADHD in 2016 and symptoms of PTSD and other psychological symptoms in 2017, following the aftermath of the Grenfell Tower fire and her involvement as a Humanitarian Assistance Lead Officer.  All of Mrs R's conditions were found to be disabilities under the Equality Act 2010.

Mrs R managed her conditions with medication and counselling and considered that these conditions did not affect her ability to perform in her role for Hammersmith. Whilst there were reports of Mrs R's leadership being undermined, extremely pressurised working conditions, being under-resourced within her department and a fear of the repercussions of taking time off as she was still in her probationary period, there was no evidence of issues with Mrs R's performance.

Matters, however, took a turn for the worse in May 2018, when Mrs R was certified unfit for work following an unfortunate episode in the pub the night before, where, after a discussion with a superior about her ADHD, Mrs R suffered a mental breakdown in front of colleagues and was admitted to A&E.

Whilst on sickness absence, Mrs R's probationary period, which was shortly due to end, was extended by three months before she was ultimately dismissed for alleged performance issues. Mrs R filed various claims regarding her treatment leading up to and including her dismissal, but for the purpose of this briefing we will be focusing on those of Mrs R's claims which were successful. 

Disability discrimination and dismissal in breach of the ACAS Code 

The tribunal held that, but for Mrs R's disability related sickness absence, it is highly likely that her probationary period wouldn't have been extended and her permanent employment would have been confirmed on 11 May 2018, based on the following:

• There was no evidence of Mrs R having been put on notice of issues with her performance and/or areas of her work that required improvement. In fact, in contradictory evidence, Mrs R was described in very positive terms by her superiors.
• If there were issues with Mrs R's performance, Hammersmith failed to follow its own internal probationary procedure and did not have any formal meetings scheduled with Mrs R either during or leading up to the end of Mrs R's probationary period, suggesting that there were in fact no issues with Mrs R's performance. 
• At the time of deciding to extend Mrs R's probationary period and ultimately dismiss her, it's likely that Hammersmith were aware that Mrs R's sickness absence related to her conditions of PTSD and ADHD.
• Leading up to the decision to dismiss Mrs R, Hammersmith had obvious concerns about Mrs R's apparent fragility in relation to her PTSD and doubted her resilience to cope with the demands of her role and, despite this, failed to follow its own sickness absence policy or get input from an occupational health referral. 
• Before deciding to dismiss Mrs R, management instructed a review of Mrs R's file for reference to her disabilities and noted the risk that Mrs R would complain that her dismissal related to her disabilities, especially considering the conversation about her ADHD at the pub in May 2018.
• Despite the tribunal's acceptance that there were some issues with Mrs R's department, it was held that this was not the sole, significant or effective reason for the decision to dismiss Mrs R. 
• Whilst the tribunal accepted that the duration of Mrs R's sickness absence was uncertain and this impacted Hammersmith's ability to make decisions concerning her employment, it was held that adequate consideration should have been given to a further extension of Mrs R's probationary period. 
• Hammersmith's conduct in backdating the probationary extension and termination letters, omitting any reference to Mrs R's sickness absence, and providing limited and unclear reasons in the termination letter, were all misleading and indicative of an intention to conceal the fact that both decisions were made after and because of Mrs R being off on disability related sickness absence.
• The extension of Mrs R's probationary period and dismissal were done without an opportunity to discuss matters and whilst Mrs R was on sick leave. Additionally, Mrs R was dismissed without an option of appeal and despite Mrs R filing an appeal against her dismissal anyway, the appeal was not addressed by Hammersmith.

The above considered, the tribunal concluded that Hammersmith's conduct amounted to a breach of the ACAS Code and the non-compliance was unreasonable. 

Harassment - Mrs R's ADHD

Mrs R's claims of harassment were found to be substantiated on the following grounds, all of which related to Mrs R's ADHD and were held to be unwanted, offensive and humiliating conduct, which created an adverse environment for Mrs R:

• repeated suggestions being made to Mrs R to the tune of "her brain doesn’t work like other people's";
• being accused of deliberately concealing her ADHD during recruitment;  and
• it being thought that she was only 'joking' when she referred to suffering from ADHD in response to an embarrassing event in the workplace. 

Lessons from this case

• Employees do not have a legal obligation to declare their disability status, but, if they choose to, this should be respected, and they should not be judged or ridiculed because of it.
• When disability related sickness absence is involved and there are concerns about an employee's ongoing ability to perform in their role, consult the employee where possible and get occupational health involved, where appropriate.
• When performance issues are identified during a probationary period, raise them with the employee timeously, offer a fair opportunity and reasonable assistance to achieve the desired improvement and notify the employee of the potential consequences of failing to achieve the desired improvement.
• As far as possible, keep an open line of communication with probationary employees and allow them to make representations on matters that affect their employment. 
• Where an employee is on sickness absence and hasn’t had a fair chance to prove their suitability for the role, explore an extension of the probationary period by the duration of the sickness absence. This is not however, a never-ending piece of string or an absolute freeze on an employer's ability to fairly dismiss an employee who cannot perform the role for which they were employed. 

Sickness absence and probationary periods present a challenging combination for employers. If in doubt, please reach out to one of our key contacts listed for specialist advice.