A recent judgement by the Employment Tribunal sees possibly the largest award for disability discrimination being made in a public sector case.
The Employment Tribunal has given judgement in the case of Mrs Wright-Turner and London Borough of Hammersmith and Fulham and Ms K Dero, following which Mrs Wright-Turner, who suffered from ADHD and PTSD was awarded £4.5 million in compensation for disability discrimination.
The Facts
Mrs Wright-Turner started the role of Director of Public Services Reform at London Borough of Hammersmith and Fulham Council in November 2017. The role was subject to a 6 month probationary period. Mrs Wright-Turner was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in November 2016; she was also diagnosed with Post Traumatic Stress Disorder (“PTSD”) in October 2017, following her previous involvement in the immediate aftermath of the Grenfell Tower fire. During Mrs Wright-Turner’s Employment Health Assessment Form she declared that she was taking medication for her ADHD, and with regards to any mental illness she stated she had suffered with ‘an episode of PTSD following Grenfell debrief, she had received therapy through NHS Grenfell support for staff’. When meeting with an Occupational Health nurse as part of the assessment she reiterated that she was managing the conditions she had referred to by medication (ADHD) and counselling (PTSD).
Unfortunately, the start of Mrs Wright-Turner’s role did not go particularly well as on her first day when meeting with her line manager, Ms Dero, discussions took place regarding the Grenfell Tower incident; during these Ms Dero spoken quite explicitly of her own experiences and referenced some harrowing footage, which left Mrs Wright-Turner feeling visibly upset. As a result Mrs Wright-Turner was initially allowed to work from home, following which she then successfully continued in her role.
In April 2018 a one to one meeting took place with Ms Dero and Mrs Wright-Turner during which some issues were discussed regarding how Mrs Wright-Turner could improve her leadership and efficiency; although it was accepted Mrs Wright-Turner would not have come away from that meeting with the impression or understanding that there were any serious concerns with her performance.
An incident then occurred following this meeting whereby Mrs Wright-Turner sent an email to another colleague, which Ms Dero felt was sarcastic and over-familiar. The two discussed this during which Mrs Wright-Turner spoke directly to Mrs Dero regarding her ADHD.
On 2nd May 2018 Ms Dero had an ad-hoc meeting with Mrs Wright-Turner over coffee during which she made a number of offensive comments to Mrs Wright-Turner regarding her ADHD; including stating Mrs Wright-Turner’s “brain doesn’t work like other peoples”, and giving Mrs Wright-Turner the impression that she had concealed her ADHD despite having disclosed this during the recruitment assessment process. Unfortunately this meeting had a lasting effect on Mrs Wright-Turner and she was signed of as unfit for work from 3rd May 2018 for a month with PTSD and acute anxiety.
On 17th May 2018 Mrs Wright-Turner received a letter extending her probationary period by 3 months. This was very unexpected. The letter mentioned performance concerns, but no detail was provided as to what these amounted to.
Mrs Wright-Turner remained of sick and continued to submit fit notes. She also raised a grievance on 1st August 2018. The Council, however, decided to terminate her employment at the end of the extended probationary period. Again the termination letter was lacking in any substantive details regarding Mrs Wright-Turner’s alleged unsatisfactory performance, and did not mention her absence.
Mrs Wright-Turner raised further grievances and then pursued formal claims in the Employment Tribunal.
Employment Tribunal Claims
The Employee pursued the following claims against the Council:
Disability discrimination in breach of the Equality Act 2010 in the form of direct discrimination, indirect discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment and victimisation; and whistleblowing claims in that she suffered detriments and was automatically unfairly dismissed as a consequence of her making protected disclosures. She also pursued claims for breaches of the ACAS Code of Practice on Disciplinary and Grievance Procedures, and unlawful deduction of wages.
Whilst her whistleblowing claims did not succeed, a number of her discrimination claims did succeed.
Was Mrs Wright-Turner disabled for the purpose of the Equality Act 2010 and did the Council have knowledge of this?
The Tribunal found that Mrs Wright-Turner was disabled by reason of her ADHD and PTSD, and that these were mental impairments which had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. Importantly the Tribunal also found that the Council had knowledge of both the ADHD and PTSD as a result of the Equality Health Questionnaire and the discussion which took place with the Occupational Health Unit during the recruitment process.
The Meeting on 2 May 2018
The Tribunal found, based on the evidence presented, that during the course of the ad-hoc coffee meeting the following had taken place; it had been repeated to Mrs Wright-Turner that her ‘brain did not work like other people’s; telling her that it was not realised she was being serious when discussing ADHD and accusing her of failing to declare her disabilities to the Council during the recruitment process. The Tribunal held that that these acts amounted to unwanted conduct which related to Mrs Wright-Turner’s ADHD, and therefore amounted to harassment.
Extending the probationary period
The Tribunal held that the extension of the probationary period by 3 months amounted to unfavourable and detrimental treatment. As set out above Mrs Wright-Turner went on sick leave on 3rd May 2018, the Tribunal held that the Council had neither decided nor intended to extend Mrs Wright-Turner’s probationary period by 2nd May, and therefore the Council’s position to do so on 3rd May 2018 was put into place because of performance concerns was not accepted by the Tribunal. As a result the Tribunal held that, but for her disability-related absence the Council would have confirmed Mrs Wright-Turner in post and therefore this amounted to both direct discrimination and discrimination arising from disability.
The dismissal of Mrs Wright-Turner
The Tribunal found that Mrs Wright-Turner was neither warned that she was at risk of dismissal nor given any opportunity to make representations before this decision was taken. Nor was she given any opportunity to appeal; the dismissal letter made no reference to a right of appeal and when she submitted an appeal it was not dealt with.
Whilst the Tribunal acknowledged the Council did have some concerns regarding performance and the operation of the Public Service Reform department, the Tribunal held by the time Mrs Wright-Turner was dismissed this was not the sole reason or the only significant or effective reason for the decision. The Tribunal noted this was based on the fact there was lack of contemporaneous evidence substantiating what these performance concerns were; there was lack of process; the failure to communicate with Mrs Wright-Turner and limited reasons set out in the dismissal letter.
As a result the Tribunal found that an individual without Mrs Wright-Turner’s disabilities would not have been dismissed in the same circumstances. The Tribunal also found that Mrs Wright-Turner’s dismissal was discrimination arising from disability, and in considering this further the Tribunal also noted the Council had failed to consider the option of extending the probationary period further and obtaining advice from Occupational Health regarding Mrs Wright-Turner’s prognosis.
Breaches of the ACAS Code of Practice
The Tribunal held that the Council had failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures in relation to Mrs Wright-Turner’s dismissal and her appeal against dismissal, and grievance. The Council failed to deal with the grievance. In relation to the dismissal, Mrs Wright-Turner was not informed of the alleged poor performance under consideration nor warned that she faced dismissal nor was she invited to a meeting nor given any opportunity to make representations nor afforded the right to appeal. The Tribunal also felt the reasons given for this decision were limited and unclear, and therefore the Council failed to provide an explanation for these failures and therefore the non-compliance was unreasonable.
The Compensatory Award
Mrs Wright-Turner was awarded £4.5million in damages. This included loss of earnings of almost £2 million, including pension loss, mortgage interest rates and private therapy costs, this was on the basis the Tribunal found that Mrs Wright-Turner’s health had been impaired to such an extent by the Council’s actions that it was unlikely she would be able to work again, and thus such losses were included until retirement.
She also received substantial awards for Injury to Feelings and Psychiatric Injury.
Notably the Tribunal also made a significant award for aggravated damages and exemplary damages. It is quite unusual for such awards to be made, and especially with regards to exemplary damages which are designed to be punitive rather than compensatory. These were awarded due to actions by the Council whereby the Tribunal felt the Council had acted in ways to deliberately conceal issues, such as back-dating letters.
The Tribunal also increased the compensation to reflect the failure by the Council to follow the ACAS Code of Practice on Disciplinary and Grievance procedures prior to Mrs Wright-Turner’s dismissal.
The Council is currently looking to appeal the award which it claims is excessive.
What can be learnt from this case?
It is to be initially noted the level of the award in this case is quite unique, and does reflect a number of factors, including the fact it involves an employee who was in an extremely senior position, and who had the potential to progress further in her career; the affect upon her health was significant with it being found by the Tribunal that she was unlikely to work again, and there were a number of actions undertaken by the Council and its advisers which resulted in their conduct being heavily criticised and resulting in aggravated and exemplary damages also being awarded.
However, the case is a stark reminder to employers to ensure that processes are carried out in accordance with relevant policies, and that they are carried out in a fair and transparent manner, with the reasoning for any decisions taken being documented and supported. It is also an important reminder of the need to fully consider an individual’s health, and especially when this may relate to a mental health condition, as part of any process and decision making regardless of an individual’s length of service.