On discriminatory dismissal for disability: lessons for employers, managers, and HR personnel.

From July 2019, GR was employed by a UK digital bank. She passed her probation in October 2019. Her boss thought that her performance was "acceptable but not dynamic".

From October 2019, GR suffered from various asthma-related issues. She had to WFH on several occasions. On at least one occasion, her boss turned down a WFH request. It appears that her boss did not think that she was a team player.¹

In December 2019, GR received a small raise. The letter informing her of the raise referred to her "outstanding contribution" and thanked her for her "hard work".²

In March 2020, GR's employment was terminated. This was allegedly because she had made repeated errors in her work, and did not show the potential or desire to develop.

GR then brought a claim against her employer and her boss.

GR claimed that she had been wrongfully dismissed because of her health issues. The UK Employment Tribunal agreed that she had been unfairly treated because of her disability.

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Does this case mean that employers cannot dismiss employees who suffer from illness?

Not quite, but this is a situation that needs to be managed delicately. I highlight 3 take-aways.

First, GR's employer and boss failed to sufficiently document her alleged poor performance. Although they sought to raise several examples, the Tribunal concluded, in many cases, that these were not examples of poor work performance, especially since there was no record of the feedback given.

TAKEAWAY: document feedback on work performance. If the feedback is purely verbal, there may be a dispute as to whether the work performance fell short so as to justify dismissal.

Second, GR's termination was carried out by her boss alone. HR was not present. No notes were taken at the meeting. This gave rise to a dispute as to how the termination was carried out.

TAKEAWAY: involve HR and/or Legal when carrying out terminations. Ensure that contemporaneous and complete notes are taken, and document the reasons for termination.³

Third, in one instance, GR emailed her boss to say that she was unable to work because she was "very unwell". Her boss did not respond to her emails. He claimed that he did not reply because he would not pry about medical issues. The Tribunal was not satisfied. As it observed:

"...it is a usual part of managerial responsibilities to at least express concern and extend an offer of support to an employee who reports being unwell. Human beings regularly express concern or make general enquiries about one another’s health without needing to pry into sensitive details or being seen as doing so."

TAKEAWAY: it doesn't take much to show concern, and, well, be human. Employees who are treated coldly and without affection are (surprise surprise!) more likely to bring unfair dismissal claims.