Asthma, non-performance was the cause of dismissal

A solicitor with asthma who was dismissed after taking time off sick and asking to work from home was unfavourably treated by her employer as a result of a disability, according to an employment tribunal.

The employee claimed that she was dismissed after she complained about working conditions during the Covid-19 pandemic. The employer claimed that the employee was dismissed due to choosing to work from home and for leaving work early.  Her line manager informed the tribunal that her performance was “acceptable but not dynamic” and that he was frustrated with her performance. His argument was weakened however, due to the employee having passed her probation with no issues.

However, hearing evidence, the Judge felt that the employees’ absences, and requirement to work from home due to respiratory asthma were the real reasons for her dismissal. She had developed a persistent cough which it was claimed was the result of air conditioning in the office. She had requested a desk, positioned away from an air conditioning vent, but did not receive a response. She became unwell, was absent from work for a period of time and a chest x-ray determined that she had chronic asthma. She asked for adjustments to be made to her working conditions, including working from home, not least due to the restrictions being placed on society as a result of the Covid pandemic.

The company dismissed the employee due to poor performance, stating that her attitude was not in keeping with the company values, essentially suggesting that working from home determined that she was not as committed as other employees.

She raised a grievance stating that no formal or informal warnings had been given, or prior meetings taken place, regarding her “poor performance” and that she had passed her probation and received a pay rise earlier that year with outstanding performance contribution.

The tribunal upheld claims that she had been unfavourably treated because of a disability – her chronic asthma, citing evidence that the employee was criticised for leaving work at the end of her contracted hours and that she was not seen as a “company person”.

This case involved several employment issues including alleged poor performance, working from home, sickness absence, discrimination and a long-hours culture.  It is clear that the company had formed a view of the employee which was not reflected in the way they treated her – failing to provide any informal or formal warnings of their alleged concerns relating to her attitude and performance. In this instance there was no evidence to suggest that the dismissal was in fact linked to performance, making it inevitable that the employer was found liable for discrimination in their decision to dismiss.

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