Posted by Malcolm Gregory, Partner
Record compensation for disability discrimination and unfair dismissal
A senior employee was awarded more than £2.5m after the Employment Tribunal decided that his employer conducted a ‘sham” investigation and “dressed up” issues as a breakdown of trust and confidence to dismiss the employee, who had been behaving erratically due to cancer.
The case: Mr Barrow v Kellog Brown & Root (UK) Limited
Mr Barrow was a senior employee who started to receive steroid treatment for a skin condition. He raised complaint with his employer that he was not being paid at the appropriate level of pay for someone employed at his level of seniority. The steroids built up in his body and started to make him hyperactive and energetic to the extent that he struggled to sit quietly and concentrate on work. He sent a lengthy grievance to his manager, who forwarded it to HR, suggesting that Mr Barrow was “building a case for some sort of tribunal/constructive dismissal”.
Mr Barrow subsequently informed his manager that he had been taking steroids and that these were having an adverse impact on his behaviour and it was agreed he would take some time away from the office. On his return, he attended a meeting with his manager but due to time constraints, was not able to discuss his work objectives. He registered his disappointment with his manager in an email who suggested another meeting, but also forwarded Mr Barrow’s email to HR saying “I think we need to proceed as we discussed”. Mr Barrow was subsequently told by the company, “KBR can no longer employ you”, and escorted off the premises.
Mr Barrow’s solicitors informed the company that he had been diagnosed with a form of lymphoma and told the company Mr Barrow was unsure whether he has been dismissed or suspended. At this point the company tried to initiate a dismissal process clearly designed to portray fairness and invited Mr Barrow to attend a meeting. The outcome was Mr Barrow’s immediate dismissal, with the senior vice president citing a breakdown of trust and confidence.
What did the Employment Tribunal find?
At the liability hearing, undisclosed and destroyed documents were revealed as well as significant procedural defects that had occurred. It was also discovered that a secret meeting had taken place, attended by the senior vice president, HR director and in-house counsel, in which the decision was made to dismiss Mr Barrow. The judge concluded that the investigation process was a “sham” and that management and HR were controlling matters “behind the scenes”, with the senior vice president only put forward to “give the impression that the process of dismissal was fair”. It was decided that Mr Barrow was a victim of unfair dismissal, disability-related harassment and unfavourable treatment for something arising in consequence of disability and was awarded £2,567,831.91, the second largest ever disability discrimination award.
Given Mr Barrow’s age at the time of dismissal, the tribunal awarded career-long loss taking into account his 36 years’ service to the company and the fact that it was unlikely he would be able to secure a commensurate role ever again. The tribunal also awarded Mr Barrow £25,000 for Pain, Suffering and Loss of Amenity as well as an injury to feelings award. Due to the company’s treatment of Mr Barrow after his disability became known, the tribunal awarded Mr Barrow aggravated damages assessed at £7,500. The tribunal also applied an uplift to the compensation of 8% due to procedural defects.
Please read the fill Judgment here
Implications for employers
This case is clear evidence that Tribunals are extremely aware that employers sometimes try to paper over the cracks of a process that has not been fair.
On this occasion, the financial consequences for the employer are perhaps significantly more than they anticipated when they took the decision to dismiss. Not all commercial decisions are equal when it comes to risk management.
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