A senior employee in ill-health who was sacked on the spot following a series of terse emails to colleagues has been awarded £2.5m by an employment tribunal for unfair dismissal, unfavourable treatment and disability-related harassment.
Mr Barrow was director of programme management/project management and consulting at multinational engineering, procurement and construction company KBR. He had worked at the company for 36 years.
He began experiencing health issues including skin redness and itching which affected his performance at work, and in November 2017 he was prescribed with a strong oral steroid to treat the condition. This affected his behaviour. He became hyperactive and energetic, and had difficulty sitting quietly to concentrate on work.
He had recently received a promotion and enquired about what had been entered onto the firm’s systems because there was a discrepancy in the paperwork he had been given. He became angry when the HR director suggested that the reason for his promotion was to make him look more senior compared to a colleague who was on a higher pay grade than him.
In an email, Barrow complained that he felt under-compensated, demotivated, disadvantaged and had been denied a meaningful promotion for three years.
A few days later, Barrow highlighted to the HR director Mr Brettell that his medication had had an effect on his general disposition and emotional response to some situations. He later made an appointment with occupational health and it was deemed appropriate that he take time off work to rest and allow the level of steroids in his system reduce.
When he returned to work, he attended a meeting with his line manager, Mr Barrie. He felt disappointed that his work objectives were not discussed because of time constraints. He later emailed Mr Barrie to raise this, and was told that Mr Barrie did not want to enter into a lengthy discussion with him over email.
On 5 December, Mr Barrow was invited to a meeting with another HR director, Mr Rosbrook. In that meeting he was told “KBR can no longer employ you” and was given 20 minutes to gather his belongings before being escorted out of the office.
The claimant’s solicitor claimed that he was unsure whether he had been dismissed from the organisation or suspended. It was also unclear what allegations he had faced.
Diagnosis
In January, Mr Barrow’s solicitor informed KBR that the claimant had been diagnosed with a rare cancer.
In March 2018, Mr Barrow was invited to a meeting at KBR’s office in Leatherhead, Surrey. He was unable to attend this meeting, and one that had been rearranged for another date, due to his cancer treatment.
In May, he received a letter dismissing him with immediate effect with pay in lieu of notice. The reasons for dismissal given in the letter included concerns about how he had interacted with clients, his choice of words in emails with his superiors, and claims that he had been publicly critical of the senior leadership team.
The letter said the company was mindful of the fact that he had been on medication during the period in which the emails were sent, but that there had been a “breakdown in trust and confidence” in him as an employee.
Tribunal’s decision
Following several hearings last year, the London South employment tribunal concluded that a breakdown in trust and confidence was not sufficiently proven by the organisation.
The judgment said: “Mr Barrie had decided that he wanted the claimant to go, and the only way this could be done quickly was to dress it up as a breakdown in trust and confidence.”
It found the dismissal had been unfair as there had been no genuine attempt to investigate the claims about his behaviour fairly, nor was he given enough detail about the allegations against him. Witnesses were spoken to many months after he had left the business in December 2017, which the tribunal found could have “tainted” their evidence.
It agreed that KBR would have known about the claimant’s illness, and resulting disability, when the solicitor informed the firm in January 2018. The tribunal stopped short of finding that the company had directly discriminated against him on grounds of disability, because KBR’s alleged conduct in relation to this occurred before it was aware of his cancer diagnosis.
He started to suffer health issues due to a rare form of cancer and his employer dismissed him, escorted him to the door. Today justice has been served. All £2.5m of it” – Anita Vadgama, Didlaw
The tribunal did however find it treated him unfavourably in relation to his inability to attend the meeting, and agreed that he had suffered disability-related harassment.
Claims for failing to make reasonable adjustments and victimisation were dismissed.
A spokesperson for KBR said: “KBR respects the court’s decision and is committed to conducting its business honestly and with integrity. We remain focused on always evolving our processes – creating a workplace where our employees feel valued and respected, and affirming that we do not tolerate any form of discrimination.”
£2.5m award
In a liability hearing held earlier this week, the tribunal ordered KBR to pay Mr Barrow £2,567,831.96, including £7,500 for aggravated damages. It said there was little doubt that the company manufactured a sham dismissal.
Anita Vadgama, a partner at specialist discrimination law firm Didlaw, which represented Mr Barrow, said: “My client is a man who devoted his entire life, 36 years, to working for this employer. He started to suffer health issues due to a rare form of cancer and his employer dismissed him, escorted him to the door. Today justice has been served. All £2.5m of it. I could not be happier for him.”
Karen Jackson, MD at Didlaw, said: “This is a victory for every sick and disabled employee in the country. It’s hard enough to have serious health issues without having to be embroiled in a long fight with your employer. This is what the Equality Act 2010 protections around disability are all about.
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“There is a right and a wrong way to behave in such situations. In making an award of this magnitude the tribunal sent a clear signal of its contempt for the actions of this employer. To also get a rare aggravated damages award is the cherry on the cake. This case should stand as a cautionary tale for all employers.”
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