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Thursday, November 24, 2022
A recent case was found in favour of an employee whose health issues were overlooked when considering matters of performance. The underlying reasons for dismissal are related to the workers health and working from home requests.
This tribunal case has highlighted the thorny issue of organisational cultures that promote working “above and beyond” and taking a negative view of those who operate counter to the “norms” expected by the employer.
The defendant Starling Bank dismissed deputy company secretary, Miss G Raja, in March 2020 following a series of events related to the claimant’s request for flexible working and time off for health-related matters. Ms Raja has asthma and her location within the Starling office placed her directly under an air-conditioning vent, blowing chilled air and causing a persistent cough. Requests to move seat and discuss working arrangements generally were ignored by her line manager Mr Newman. It transpired that Mr Newman had independently formed an opinion over Ms Raja’s performance, despite being on time as per her contracted hours, Mr Newman considered it was not sufficient and in line with what the bank expected. This expectation was not directly communicated to Ms Raja, in fact not only did she pass her probationary period, she was also granted a performance related bonus. Despite this, Mr Newman considered that Ms Raja was OK but just not dynamic enough for Starling.
It suggests that presenteeism was the norm and anyone falling ill or requesting flexibility in their working patterns, was considered “outside” of an acceptable level of commitment.
The conclusion of Ms Raja’s tenure with Starling Bank speaks of the culture and lack of due process leading up to the dismissal. There were no formal or informal warnings, simply a meeting that Newman convened. Ms Raja had previously raised concerns over the policy related to Covid-19 as she would be very vulnerable given her condition. Unfortunately, that was not the reason why Newman called the meeting. He referenced poor performance and turning up on time rather than ahead of time and she showed a lack of ownership.
Ms Raja brought claims for unfair dismissal, discrimination and victimisation but these were dismissed by the tribunal. The tribunal did uphold Raja’s claims relating to her disability and the bank’s failure to apply appropriate care and attention to those issues having previously raised concerns over her health related to working conditions.
The case highlights the importance of taking appropriate steps when an employee raises concerns. Failure to act proportionately and make reasonable adjustments in these circumstances leaves the employer unlikely to be successful in any such legal case regardless of how convinced they may be about “the fit” or the performance of the employee.
If you would like advice or assistance on this or any other employment matter, please do not hesitate to contact our friendly and supportive Employment Law team on 0191 232 8451 or email employmentdepartment@samuelphillips.co.uk
Written by Phoebe Gogarty, Solicitor - Employment
Phoebe is a Solicitor specialising in Employment Law. She acts for both Claimants and Respondents in Employment Tribunal claims and provides day-to-day employment law support to many local businesses
