A recent Court of Appeal case has brought these fundamental issues into sharp focus. A company terminated the contract of long service employee on the basis that he lacked the required skillset to fulfil his role effectively and his attitude towards work and his colleagues.
The employee had worked for the company for 8 years. The employee claimed that the dismissal was unfair procedurally and he succeeded on that point. He also claimed that he has been the subject of disability discrimination. The employee suffered from a delusional disorder involving abnormal thoughts about being monitored and followed. The employee said that this interfered with his day-to-day activities of sleeping and social interaction (which the company failed to address or consider as mitigation for his conduct).
The employer’s position was that it had no constructive or actual knowledge of this alleged disability and more than that, that the employee’s condition did not meet the statutory definition of disability (any physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities – long-term means that the condition has lasted or is reasonably expected to last for 12 months or more).
The employee was employed as sales executive. A relationship with a Ukrainian woman had ended and the employee developed paranoid delusions that he was under surveillance by the Russian mafia. These feelings of paranoia lasted for a short period in 2013 and then re-emerged in 2017. The employee had told his CEO about his feelings, but his immediate colleagues and the HR department were wholly unaware.
His time-keeping and attitude towards work and his colleagues were the subject of adverse record during appraisals conducted throughout the period of employment. The employee was dismissed in September 2017.
The Court of Appeal concluded that the company not only had established that it was unaware that this employee was suffering from a disability but also that the employee had failed to establish that the condition had a substantial adverse effect on day-to-day activities or that the condition, which had not lasted for a 12-month period, was likely to recur.
It is interesting to note that the employee adduced medical evidence to the tribunal in support of his arguments. The company provided compelling evidence from the employee’s former colleagues and the contemporaneous and accurate appraisals material from its HR department. There is always merit in keeping reliable appraisals documentation and tackling difficult issues during the appraisals process! Is your appraisals process a robust and meaningful assessment or a tick box exercise?
The Baring Foundation Report
The Baring Foundation commissioned a report as part of its Strengthening Civil Society programme. The report has been published. It considers the effectiveness of civil society campaigners and lawyers who use legal action to tackle racism in the UK since 1990. The report highlights the value of using informal legal processes to persuade organisations and service providers to end racially discriminatory practices and the importance of providing further support to victims of racism beyond legal support. The report concluded that while legal action can be a useful tool in identifying racism and fighting racial injustice, the effective use of legal action was hindered by the adversarial nature of the legal process.