A finance and IT director who was diagnosed with cancer experienced harassment when he was denied a pay increase and warned that his future sick pay entitlement would be reduced if he fell ill again, a tribunal has ruled.
The case, at Reading employment tribunal, heard that Mr Ralfs, who was diagnosed with relapsed Hodgkin Lymphoma, was subjected to multiple instances of unfavourable treatment by his employer, The Arbib Education Trust, a multi-academy trust in Berkshire.
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This included being warned that future sick pay entitlement would be reduced if he fell ill again in the second year of service, and being denied an inflationary pay rise because he was still “new in role”.
Employment Judge George found that Ralfs had been treated unfavourably and had experienced harassment and victimisation because of his disability. His subsequent resignation amounted to constructive dismissal and was both unfair and discriminatory.
Other claims, including for direct discrimination and whistleblowing, were dismissed. A remedy hearing is expected to follow later this year.
Ralfs, who had been a former employee of The Arbib Education Trust, was asked to return as finance and IT director in 2021, a role he began the following February.
Two days after starting, however – in what the tribunal described as “what must have been a devastating blow for the claimant and his family” – he was diagnosed with a relapse of the cancer Hodgkin Lymphoma, a condition he had previously disclosed during recruitment. He promptly notified his manager, Mr Bryant, and the HR director, Ms Casemore.
Ralfs began chemotherapy on 16 March, and a letter from his haematologist suggested he might be able to undertake light duties from home, depending on how he felt.
One of the key areas of disputed evidence, the tribunal heard, was whether (as alleged by Ralfs) Bryant proposed that he should be paid enhanced sick pay in exchange for working or whether it was agreed he would simply claim enhanced sick pay.
The relationship between Ralfs and the trust rapidly deteriorated. He was asked to report daily on whether he was working and to send weekly emails confirming his hours. He also had phone calls with Casemore and then, on 29 March, she wrote to him to “summarise the position that we have agreed regarding your sick pay, undertaking work and staying in contact while you are undergoing chemotherapy”.
While the trust agreed Ralfs would be on full pay until the beginning of April, this would then be reduced to half pay until August, and thereafter any leave would be unpaid. Moreover, if Ralfs became ill again within the following year, his entitlement to sick pay would be reduced.
It referenced a rolling 12-month calculation, implying that he would need to return to work for a full month to qualify for full sick pay.
‘New in role’
Ralfs returned to work on 21 November 2022, on half hours, under a phased plan recommended by occupational health. A week later, however, he was informed that he would not receive an annual pay rise, with the letter citing that he was still “new in role”.
However, the tribunal heard this rationale was inconsistent with the trust’s own policy, which defined ‘new in role’ as starting after 1 March. As Ralfs had begun on 1 February, he therefore did not meet that definition.
On 30 November, Ralfs challenged the pay decision in an email, asking for clarification as to whether he was technically still ‘new in role’ because of the amount of sick leave he had taken.
He expressed concern that his serious illness was being used to justify withholding an inflationary pay increase. Ralfs met with Casemore and was advised of the formal appeal process and opted to submit a written appeal.
This was followed, in January 2023, by a formal grievance being raised. This concluded that the pay decision was based on Ralfs’ limited time in post and wider budget constraints. While the independent investigator Marie Ashton did not find direct discrimination, she did criticise the employers’ communication.
An employee diagnosed with cancer should not be treated less favourably by their employer due to their disability, including in respect of their terms of employment such as pay or promotion.” – Liz Stevens, Birketts
In February, Ralfs tendered his resignation, citing discrimination in the pay award process, misrepresentation of his work during phased return, breach of internal policies, failure to notify him of changes to sick pay, and failure to address his discrimination complaints.
Employment judge George found that the trust’s decision not to award Ralfs a pay review did amount to “unfavourable” treatment arising from his disability.
While Ralfs had been paid in line with the trust’s policy – in other words, only for hours worked and with no retrospective reduction – he was not informed of how the policy would apply to him until 12 December 2022, and then only orally, contrary to the policy’s requirement for written communication.
‘Hostile or offensive’
The tribunal also concluded that a “hostile or offensive” environment had been created, particularly given Bryant’s senior position, adding that Ralfs “was reasonable to consider it so”. His complaint of harassment therefore succeeded in part.
Liz Stevens, professional support lawyer in the employment team at Birketts, highlighted that employers need to be aware that cancer is one of the conditions listed under the Equality Act 2010 as being a ‘deemed disability’, regardless of the severity of an individual’s condition.
“This means that an individual is protected from the date of diagnosis and does not need to meet the usual criteria for being considered ‘disabled’ within the meaning of the legislation (having a substantial impairment lasting, or likely to last, at least 12 months),” she pointed out.
“An employee diagnosed with cancer should not be treated less favourably by their employer due to their disability, including in respect of their terms of employment, such as pay or promotion. An employer will be under a duty to make reasonable adjustments to premises and working practices to help the individual carry out their duties.
“In this case, it appears that frustration about the impact of the claimant’s absence and additional pressures on staff resulted in comments made to the claimant that the tribunal regarded as amounting to harassment – although the tribunal noted there was no intention on the part of the respondent to discriminate or harass and had in fact taken some supportive steps. The lack of intention does not mean that an employer’s actions will be found to be lawful,” Stevens added.
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