Disability discrimination and consequences

Napthens - September 12th 2019

Both employees and workers are protected from discrimination arising from a disability within the workplace, under the Equality Act 2010. However, statistics produced by the Ministry of Justice indicate that such claims are on the rise, with there being 6,550 claims made last year compared to 4,770 the year before.

Last month an employment tribunal ruled that the Financial Conduct Authority (FCA) had discriminated against an employee, who suffered from kidney disease, after he was given a poor appraisal score as a result of his performance.

The Case

Mr Cunningham worked as an associate lawyer for the FCA, joining in 2010. However, during his employment he began to suffer from chronic kidney disease, as well as right upper limb difficulties.

In 2015 Mr Cunningham was absent from work due to undergoing surgery on his right hand. After this he took a year-long career break, finally returning in December 2016. In January, Mr Cunningham provided the FCA with a fit note, which stated that he was suffering from renal problems which were under investigation. It recommended that he could return with adjustments, these being limiting his working hours to 6 a day and allowing him to work a 4 day week. It was subsequently agreed that he would work 2 days at home and 3 in the office.

Alongside a request to reduce his working hours and being able to work from home, Mr Cunningham had also requested that he was taken off a case which was assigned to him, known as “Case G”. The basis for this was that it would ease his workload whilst he was waiting for the results of his kidney problem. In March 2017, his manager Anna Couzens suggested that he should instead apply for a promotion, which would have made him the case manager on Case G. Mr Cunningham had applied for this position but was ultimately unsuccessful.

Following his unsuccessful application, Mr Cunningham met with Ms Varney, who was involved in the recruitment process. During the course of the meeting he was informed that despite his request to be taken off Case G, he would instead be required to project manage the case. The following day Mr Cunningham emailed Ms Varney stating that he wasn’t comfortable being the project manager and this should instead be done by the person who received the promotion.

In April 2017, Mr Cunningham was required to provide an update to the board on the progress of Case G. The draft report was read by Ms Varney, who subsequently emailed Mr Cunningham highlighting her disappointment at the quality of the report. A week later a further fit note was provided confirming that his renal disease was being investigated and that it caused him “Extreme Tiredness”. Whilst he was certified as being fit for work it was recommended that his working hours remained at 6 hours each day, with one rest day midweek. Alongside this, a further recommendation was made to allow Mr Cunningham to work from home as much as reasonably possible. As a result of the fit note, Couzens confirmed with Mr Cunningham it wouldn’t be appropriate for him to continue in his full role and reduced his working hours. However, he was still required to continue as lead on Case G.

Shortly after, in June 2017 Mr Cunningham signed off work on sick leave, during which time he was diagnosed with chronic kidney disease, which was deteriorating, with symptoms that included profound fatigue and poor concentration.

Upon his return in February 2018 he was invited to an appraisal, the purpose of which was to assess his performance prior to his absence the previous year. He was given a score of 1, meaning that his performance was “below standards” and as such he wouldn’t receive a bonus or a pay increase. The score was based on his failure to comply with the request to lead Case G, the quality of the report he composed for the board and his work in the office.

Bringing a number of claims against the FCA, the Tribunal found that they had discriminated against Mr Cunningham as a result of his disability. The basis for which was that his poor board report and refusal to manage Case G were directly related to his impaired performance, which stemmed from his kidney disease. Any award is to be decided at a later date.

Best Practice

Whilst the FCA took some proactive steps in making reasonable adjustments in relation to Mr Cunningham’s working hours and offered some flexibility in relation to working from home, they failed to take his disability and the respective consequences into account when providing him with a score during his appraisal.

Employers should be aware that where an employee’s performance has decreased and could be attributed to a disability, then this should be considered when carrying out any appraisals. Consequently, employees shouldn’t be treated less favourably as a result of any disability they may have.