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This landmark Employment Tribunal case for disability discrimination reveals critical missteps by the employer, resulting in an award covering loss of earnings, injury to feelings, and more.
27 June 2024
Case Study
The Employment Tribunal case Wright-Turner -v- London Borough of Hammersmith & Fulham and another has garnered much attention for the level of compensation awarded.
A staggering £4.6m was awarded to cover past loss of earnings; future loss of earnings to retirement and loss of pension; injury to feelings; psychiatric injury; aggravated damages and exemplary damages. A further £271k was awarded for non-compliance with Acas codes. This is against an average disability discrimination award of £45k in the year 2022/23 according to ET statistics. So how did this case go so wrong for the employer?
The claimant’s seniority and high earning potential do feature in this significant amount, but the value was also exacerbated by the respondent’s own conduct. We delve into the facts of this case below and also offer some practical guidance about what we can learn from it.
The claimant applied for the role of Director of Public Service Reform at Hammersmith & Fulham Borough Council, confirming in her pre-employment questionnaire that she had ADHD and that she had recently been diagnosed with post-traumatic stress disorder (PTSD) from her work with Grenfell Tower.
On her first day in the role, her new line manager saw fit to discuss the experience and discuss a shocking YouTube video about the tragedy. This triggered the claimant’s PTSD who was then advised to work from home for a fortnight. When she was back working in the office, her colleagues noticed that she was stressed and worked very long hours. A few months into the role she was told she needed to “show leadership” and “plan better”. The issues over her obvious stress were not addressed. She was also challenged about her tone, and told that her “brain did not work like other people’s”.
She was eventually signed off sick with PTSD and acute anxiety. Her GP advised no contact with work and she duly notified her employer of this. She was then told that her probationary period would be extended. The letter referred to “performance concerns” but did not give any detail. The claimant raised a grievance which the respondent ignored and instead moved to terminate her employment. The Tribunal later established that the letter of dismissal had been backdated to avoid an allegation of it having been sent in response to her grievance.
She then raised a number of claims based on her dismissal and her experience of working for the respondent for just nine months, including discrimination, harassment and failure to deal with her grievances or to allow an appeal against her dismissal. These were brought against her employer and her line manager personally.
Case Study
The Tribunal found that the claimant had indeed been harassed by her line manager and that the extension of her probationary period and eventual dismissal both amounted to discrimination. The employer had also failed to adhere to any fair procedure.
So what can we learn from this?
Our advice would be to stop and think before dismissing an employee who may have protection from the Equality Act and to consider whether a probationary period should really be treated any differently to permanent employment, especially when the individual has at least one protected characteristic. Consider how to fairly manage ill health and sickness absence and refer to your own internal policies, even within the early days of employment.
If concerns over capability or suitability are genuine, address these but do not make vague allusions to them if they do not exist. Adhere to the Acas codes of practice and do not ignore a grievance. In particular, do not backdate letters or manufacture evidence! The respondent is likely to appeal the level of compensation awarded here, but this advice remains valid.
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