Disability discrimination resulted from failing to record performance

A marketing manager was the victim of disability discrimination after her manager who did not want to criticise her work, sacked her when she returned after an illness, according to an employment tribunal.

It transpired that the employee who had a declared illness which was regarded as a disability according to the Equality Act definition, was informed of performance issues during her six-month probationary period, but received “positive reinforcement” from managers who did not want to add to her stress while suffering from illness, despite being concerned about the employee’s performance and ability to do the job.

The employee was often required to undertake other duties and stated that problems arose when “more and more work” was handed to her as she did not have time to deal with it. She brought her excessive workload up with her line manager but nothing came of this. She complained that there was “very little” communication from managers. At no time did her managers communicate that they believed she should have been able to manage the role and additional tasks.

After a period of illness, the employee returned to work and her employment was terminated. But according to the tribunal, there was no written communication about the employee’s poor performance and no records of any concerns.

The judge concluded that the decision to dismiss was done with the employee’s “disability in mind”, as he said that the reason for not giving negative feedback was because of her “disability and medical treatment”, which in itself, amounted to disability discrimination. He said that as there was no signposting of likely consequences of her failing work standards and nothing to warn her that dismissal might be imminent or was likely if her performance did not improve, the dismissal was therefore clearly linked to her disability.  The employee was awarded £32,351.36 in compensation.

This case clearly illustrates the risks of failing to performance manage employees and in particular, during the probationary period.  121 HR Solutions has experience in supporting employers with performance management processes and can be contacted on enquiries@121hrsolutions.co.uk.

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