Starling Bank treated an asthmatic employee unfairly when it dismissed her because she was likely to have needed to work from home or take more time off during the pandemic, an employment tribunal has found.
Ms Raja, a lawyer who worked as the digital challenger bank’s deputy company secretary, was dismissed by the company in March 2020 after she indicated to her manager that she needed to discuss working arrangements as the Covid-19 pandemic escalated.
The company claimed she was dismissed because of concerns about her performance, however Raja claimed she had not been made aware of these before she lost her job.
Her manager, Mr Newman, told the claimant she was “not a Starling person”. He had been unhappy about her working from home on previous occasions and for leaving the office at her contracted time while colleagues worked later.
Raja joined Starling Bank in July 2019. In October 2019 she passed her probation with no issues raised.
Newman told the London Central employment tribunal that he felt Raja’s performance at this point was satisfactory, but was concerned that she did not extend herself. The example he gave was that he would arrive at the office at 7:45am ahead of a 8:30am board meeting, whereas the claimant would arrive at 8:25am.
Evidence presented to the tribunal suggested that employees working long hours in the office was important to Newman.
Newman did not have a probation or performance-related discussion with Raja. He said feedback on specific matters had been given, but Raja claimed no performance-related concerns had been voiced.
In October 2019 the claimant developed a persistent cough which she claimed was due to the air conditioning in the office exacerbating her asthma. She had previously raised concerns about the air conditioning with the company’s facilities department on several occasions, but nothing had changed. She asked Newman whether she could switch desks to move away from the air conditioning vent.
Health-related dismissal cases
She made an appointment with her GP in November 2019. She informed Newman that she would need to work from home because she had a chest infection and needed to see the GP in order to change her inhalers.
She later went on sick leave because of her asthma in December 2019 and had a chest x-ray in January 2020. Newman did not respond to emails about these. Raja told the tribunal that the lack of response about her ongoing health issues felt punishing.
Newman told the tribunal that his frustration with the claimant’s performance had grown by January 2020. He discussed his concerns with Starling Bank’s CEO and chief people officer, but these discussions were not documented.
In February 2020 it was decided that the company would dismiss Raja for performance-related reasons, however the meeting to discuss this was delayed due to both Newman and Raja taking annual leave.
On 4 March 2020, Raja had a severe cough and had to leave the office at 4:45pm. She asked Newman whether she could leave early because of the effect the air conditioning was having, but she claimed he said nothing and continued working at his computer. She worked from home the following day.
Newman told the tribunal that he did not recollect the claimant’s persistent cough. He said that other people he had spoken to did not recall it either. He had no discussons about her health or attendance.
On 9 March 2020, after receiving an email from HR about the company’s monitoring of government advice in relation to the Covid-19 pandemic, Raja asked to speak to Newman about her medical condition.
He later invited her into a meeting room and informed her that she would be dismissed because of her performance. Raja told the tribunal she felt “blindsided” because she thought the discussion would be about her medical issue and had received no informal or written warnings about her performance.
Notes from the meeting, which was not attended by and HR representative nor was the claimant given an opportunity to invite a colleague, showed that Newman said Raja was “not a Starling person” and that others had been “really putting in the effort and [she had] not been”.
Raja lodged a grievance. She claimed she had not been given any warning about the meeting and noted she had been awarded a performance-related salary increase earlier that year, however the company told the tribunal that this had been a standard letter sent out to all employees.
She was not given any information about her right to appeal the decision, nor was her grievance, claim of discrimination, or later appeal looked into. However, the tribunal agreed with the company that as it had received a “without prejudice” letter from Raja’s legal representative and notification that she would lodge a tribunal claim, it did not feel the need to progress an internal appeal.
A total failure to respond to messages about ill health and the failure by a manager to express any concern or support to a subordinate on a significant number of occasions, seemed to us to be intended to discourage time off for ill health and working from home.” – Employment Judge Natasha Joffe
Employment judge Natasha Joffe found that Newman’s attitude towards working from home, and the fact that Raja would need to occasionally work from home to manage her asthma, had influenced his decision to dismiss the claimant.
The judgment in Miss G Raja vs Starling Bank says: “The claimant said that his failure to respond to messages showed he did not approve of and lacked sympathy for her health problems… A total failure to respond to messages about ill health and the failure by a manager to express any concern or support to a subordinate on a significant number of occasions, seemed to us to be intended to discourage time off for ill health and working from home. The fact that he allowed working from home tacitly by not objecting to the occasions when the claimant worked from home to attend appointments did not change our impression that he was seeking to discourage the requests by not acknowledging them.
“He was critical of the claimant for leaving work at the end of her contracted hours. That attitude seemed to us in these circumstances to align with an attitude of impatience with ill health absence.”
The tribunal panel was also unconvinced that Newman had planned to dismiss Raja that day, with no meeting invitation, letter or HR representative present. It felt he had decided to bring forward the dismissal when he realised the claimant could ask about reasonable adjustments in respect of her medical issues.
The tribunal agreed she had been treated unfavourably because of something arising from disability in respect of her dismissal, but not in respect of the company decision not to investigate her allegations of discrimination. A claim of unfair dismissal was also dismissed.
It also found Raja was subjected to detriment because the company did not hold a meeting to discuss her health and safety concerns.
A Starling Bank spokesperson said: “We’re pleased the tribunal found in favour of Starling on three of the five counts. But we are, of course, very disappointed in the finding against us on two counts and do not feel it fairly reflects the Starling culture or how we look after our team.
“We are in the process of reviewing the judgement with our professional advisers and considering the position in relation to an appeal.”