Manager with cancer told to ‘grow up’ by boss was constructively unfairly dismissed, tribunal rules

Claims of disability discrimination and failure to make reasonable adjustments were also upheld after security firm worker requested reduced workload because of illness

Manager with cancer told to ‘grow up’ by boss was constructively unfairly dismissed, tribunal rules

A general manager with kidney cancer who was told by his boss to not be a “baby” and to “grow up” when he requested to work fewer hours was discriminated against by his employer because of his disability, an employment tribunal has found.

The Birmingham employment tribunal ruled that Steve Pointon, who began working for Crewe-based Alpha Omega Security as a general manager in 2015 until his resignation in 2018, had been “treated in a disrespectful and demeaning way” and was asked to take on more work than he could handle.

In June 2016, Pointon was signed off sick, and in August he was diagnosed with kidney cancer. Pointon returned to work after two weeks, however was signed off sick for six weeks from 19 September 2016 following surgery. He described his treatment plan as “brutal” and “traumatic”.

Pointon and his boss, company director Ken Lawton, agreed that on his return Pointon would have a slightly reduced work pattern for two weeks followed by a third week full time.

However, when he did go back to work Pointon indicated he was struggling to cope with the workload, which was particularly busy over Christmas. Despite this, in a meeting on 16 January 2017, Lawton expressed his disappointment with Pointon for not attending a function. 

The tribunal noted that it was a “reasonably common feature” in Pointon’s ‘welfare’ meetings that Lawton would state how hard he [Lawton] was working and how tough things were for him, which employment judge Gary Self said was “demonstrative of a lack of emotional intelligence and insight on the part of Mr Lawton”. This made Pointon feel guilty about his inability to work at full capacity and “exacerbated his stress”, the judge added.

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While accepting this was not a deliberate tactic, Self said: “[It was] indicative of a blind spot that he [Lawton] held whereby his primary focus was ultimately always on the needs of the business and himself.

“He lacked the insight to understand the effect and pressure his words would inevitably have [on Pointon] It is difficult not to conclude that Mr Lawton viewed the Claimant’s absences that arose from his medical condition as highly inconvenient.”

Pointon was declared cancer free in February 2017 and returned to work full time. However, on 15 January 2018, he was told the cancer had spread to his stomach and that the prognosis was poor.

In an email sent on 28 January, Pointon told Lawton he didn’t feel up to attending a meal for the company’s managers because his critical health condition “made family time even more precious”. He also said he had worked away from home for three days the previous week and had to work over the weekend to prepare for a meeting, which he believed to be inconsiderate considering his medical situation, and that because of the stress, he felt the meal would be “too much”. 

This prompted Lawton to call a meeting, stating: “I don’t want those sorts of emails from staff that we’re trying to support”. Lawton also told Pointon that he did not mind when the preparation for the meeting was done, but that it was part of his role and if he could not do it during his working day he would have to do it in his own time. 

On 21 February, in a letter to Pointon, Lawton said attempts would be made to minimise stress but that Pointon “needed to take on the responsibilities of his role as much as could” if he chose to continue working. Lawton also said he could reduce his hours but there would have to be a pro rata reduction in pay.

The following month, there was a dispute over the rota, which Pointon had been expected to produce. The tribunal heard that in a meeting on 14 May, Andrew Taylor, the firm's operational director, told Pointon that he needed to “provide more help and support [...] as he was after all general manager”.

According to notes made by Pointon at the meeting, he said he could not give “more than I already am” and that he might have no other option but to “go home and sign back off sick”.

During this discussion, the tribunal heard that Taylor said to Pointon “don’t be a baby” and told him to “grow up”. Pointon went home following the meeting but did not sign off sick.

Over the following months, as Pointon underwent more treatment, the “frosty” atmosphere between the pair remained. Then, in October, Pointon’s employer failed to notify him that his Statutory Sick Pay (SSP) was coming to an end and did not provide him the form he needed to seek ongoing benefits until 10 days after his SSP ended. Pointon described this as “the last straw” and resigned in November 2018.

The judge ruled that while there was some reduction in his workload, when the business need had increased Pointon had been asked to take on more work than his condition allowed and to work out of hours. As a result, the reduction in work was “not sufficient nor consistently applied”.

It added that Lawton’s behaviour “fell well below what would have been acceptable in any workplace” and was “an act of harassment”.

Lawton told the tribunal that he “treated everybody equally”, however, the judge said “when dealing with a disabled person equal treatment is often not enough and at times you have to go further in order to level the playing field by treating a disabled person more favourably”.

Claims for unfair constructive dismissal, disability discrimination, failure to make reasonable adjustments and harassment succeeded. Allegations of victimisation were dismissed.

Pointon declined to comment. Alpha Omega Security has been contacted for comment. The case will now go to a remedy hearing.