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The Financial Conduct Authority (“FCA”) has been held liable in a recent Employment Tribunal decision which serves as a stark reminder to employers to tread carefully when taking any disciplinary action against employees who may be protected under the Equality Act against disability discrimination.

The ET held that an employee who had been diagnosed with kidney disease and suffered fatigue as a consequence of his disability, who subsequently received a negative appraisal had been discriminated against because of his disability.

Background

The employee (“Mr Cunningham”) was an associate lawyer for the regulator.  He had been diagnosed with two conditions.

1. Chronic kidney disease
2. Right upper limb difficulties

Following a period of sickness absence, Mr Cunningham returned to work in December 2016 on the basis of an occupational health assessment which recommended reasonable adjustments being made.

Reasonable adjustments

The duty to make reasonable adjustments is unique to the protected characteristic of disability, and it is central to the effectiveness of disability discrimination law.  In the House of Lords case of Archibald v Fyfe Council [2004] IRLR 652, it was held that disability discrimination law was different from sex and race discrimination law in that it requires employers to take steps to help disabled individuals, which they are not required to take for others.

“The duty of reasonable adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability.  This necessarily entails a measure of positive discrimination.”

Examples of reasonable adjustments:

• Allowing a worker to work flexi time / additional breaks;
• Transfer to a suitable alternative post with retraining and modified equipment;
• Structuring the working day to ensure that other workers cooperate with any necessary arrangements;
• Not counting periods of disability related absence when selecting for redundancy or taking disciplinary action;
• Supporting a phased return to work;
• Changing / not including certain measurable objectives relating to performance management.

The occupational health report commissioned by the FCA for Mr Cunningham proposed that Mr Cunningham work  3  days in the office and 2 at home. The FCA was supportive of this adjustment. In January 2017, Mr Cunningham underwent some further medical complications relating to his disability and as a result occupational health recommended that the working hours be reduced further.  Mr Cunningham also asked for his workload to be made more manageable by taking him off a particular case that he had been working on.

Some months later, an opportunity for a promotion arose; the successful candidate was to be the manager of the particular case that Mr Cunningham was working on. Mr Cunningham applied and was unsuccessful. The FCA told Mr Cunningham that he would be responsible for managing the case until further notice, presumably until the successful candidate was appointed to take over the matter.  Mr Cunningham refused and said that he did not feel comfortable leading the case if he had not been successful in the promotion and suggested that working on the case put him under unnecessary pressure at a time when he was unwell.

In April 2017, Mr Cunningham was still involved in the case and was asked to prepare a board update, the update was heavily criticised at the meeting . At the same time, it was confirmed that Mr Cunningham was suffering from renal disease.  The FCA were informed that the condition was leaving him feeling extremely tired. Occupational Health proposed working reduced hours (6 hour days), with one day mid-week for rest, as well as, as much working from home as possible.

Mr Cunningham’s line manager confirmed it would not be appropriate for him to perform his full role given his condition and reduce the hours but said it remained appropriate for him to continue to lead the case.

In June 2017, Mr Cunningham took sick leave. At this point, he had been diagnosed with chronic kidney disease, and the condition appeared to be deteriorating, with him experiencing significant symptoms impacting upon all aspects of his normal day to day activity.

Mr Cunningham returned to work in February 2018, and was invited to an annual appraisal to assess his work prior to commencing sick leave.  He was given a low score which defined his performance as “below standard”.

The ET decision

The FCA accepted Mr Cunningham had suffered from severe fatigue during 2017/18 appraisal year due to chronic kidney disease.  The ET held:

“The poor board reports and his refusal to manage case G were the two factors that resulted in Mr Cunningham’s appraisal score of 1 and therefore he was treated unfavourably because of something arising from his kidney disease, namely impaired performance caused by severe fatigue”.

Mr Cunningham was discriminated against because of his disability. The claims for indirect disability discrimination and failure to make reasonable adjustments failed.

The tribunal found that the FCA had done all they could in relation to making reasonable adjustments, and that they had also not indirectly discriminated against Mr Cunningham.  Indirect discrimination is the application of a provision criteria or practice which places a worker and others who have the same disability at a particular disadvantage.  However this decision reaffirms the point that employers need to be very careful of the ‘consequences’ of disabilities and the fact that they can also afford protection under the Equality Act.

For advice in relation to disability discrimination, making reasonable adjustments in the workplace and any other employment law matters relating to discrimination please contact Kaajal Nathwani on 020 8363 4444.