Company secretary with asthma was unfavourably treated after sickness absence and work from home request, tribunal rules

Judge finds claimant’s time off sick and plea for remote working were real reasons for her dismissal, rather than alleged underperformance

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A solicitor with asthma who was dismissed after taking time off sick and asking to work from home was unfavourably treated by her employer because of something arising from disability, a tribunal has ruled. 

The London Central Employment Tribunal heard that Miss G Raja, a deputy company secretary at Starling Bank, was dismissed in March 2020 after she raised working conditions amid the Covid-19 pandemic with her line manager, Mr Newman.

The tribunal heard that Newman told Raja she was “not a Starling person” and she was “moving at a different speed to people in the rest of the team” as he was dissatisfied with her working from home on occasions and leaving the office at her scheduled time while colleagues worked later.

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The tribunal heard that Raja received ongoing criticism from "demanding" Newman, who valued employees who worked late in the office more highly.

According to the ruling, Newman told the tribunal that in October 2019 Raja’s performance was “acceptable but not dynamic” and his “frustration” with the claimant’s performance was growing. However, Raja had passed her probation in October 2019 with no issues raised. 

The example he gave for Raja “not extending herself” was that he would arrive at the office at 7.45am ahead of the 8.30am board meeting, whereas the claimant would arrive at 8.25am. He said he appreciated not everyone can turn up early but said there was a “lack of ownership'' by Raja and that he regarded long hours as important. 

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However, Judge Joffe said Raja’s ill-health absences, need to work from home and likely requirement for further time off, in particular, were the real reasons for her dismissal. 

Raja, who has asthma that is exacerbated by environmental conditions and respiratory infections, developed a persistent cough in October 2019, which she claimed was a result of the air conditioning in the office being very cold. 

On 30 September, Raja had asked Newman if she could have his old desk, which was further away from the air conditioning vent, but did not receive a response. 

Newman told the tribunal that Raja did not mention that her asthma was the reason for the request, and that he thought it was simply to get to a warmer area away from the vent. He also thought she took the desk anyway, even though he did not reply to the message. 

Because of her ongoing cough, Raja scheduled a visit with her GP on 7 November 2019 and sent Newman an email, saying: “I will need to wfh [work from home] tomorrow, please. I have a chest infection so I will need to see my GP to change my inhalers.” 

Between 16 and 20 December 2019, Raja was on sick leave. She sent various emails to Newman with no response, and on 23 December 2019 returned to the office but had not made a full recovery. She then had a chest x-ray in January 2020.

She told the tribunal that the lack of response concerning her health issues “felt punishing”. She also said Newman was not responsive about health matters but was responsive concerning work, and that Starling Bank and Newman should have made the connection between her earlier complaints and asthma at this point as she had a persistent cough for four months and used inhalers openly in meetings. 

The tribunal heard from Newman that his “growing frustration” with Raja’s performance, including what he called an apparent lack of care, caused him to have “little confidence she could improve”. He said he discussed his concerns with the CEO and chief people officer, but these discussions were not documented. 

In February 2020, it was decided by the company that Raja’s employment would be terminated for performance concerns; however, the meeting for this was delayed because both Raja and Newman were on holiday. 

On 4 March 2020, because of fluctuations in temperature in the office, Raja had a severe cough and had to leave early, at 4.45pm. She told the tribunal that she asked Newman if she could leave early as she had a persistent cough, but was told nothing and he continued working at his computer.

Newman told the tribunal that he did not remember this incident, and stated he had a large team and received hundreds of emails and Slack messages, as well as many in-person visits. 

On 9 March 2020, Raja drafted an email in the ‘notes’ function on her phone, planning to ask Newman for a discussion regarding an email sent by the HR team about the company’s monitoring of government advice concerning Covid-19. 

She told the tribunal that she was worried about contracting Covid on the way to work or at the office and concerned for both her and her parents' safety. Raja then requested a conversation with Newman about her pre-existing condition. 

He later invited her into a meeting room and she was “blindsided” by being dismissed. She then demanded clarification as to why she was not “a Starling person”, and enquired about whether her continued illness, the fact that she had been absent, and the fact that she had now raised coronavirus worries, were to blame. 

Notes from the meeting said: “I feel you’re not a Starling person; there are people here who are putting in the effort and you have not been. You have been moving at a different speed to people in the rest of the team that wants to work for it.”

On 11 March, Raja raised a grievance. She claimed that no formal or informal warnings had been given, or prior meetings taken place, concerning the decision, and that she had passed her probation and received a pay rise earlier that year with outstanding performance contribution. 

On 16 March, Newman sent the claimant a dismissal letter, which said: “I am writing to confirm that your employment with the company was terminated on the 9 March 2020 [owing] to underperformance in role.” 

The tribunal upheld Raja’s claims that she had been unfavourably treated by the bank because of something arising from her disability, as well as her claim that the bank failed to convene a meeting to address her health-related issues.

Raja’s other claims for unfair dismissal, discrimination and victimisation were all dismissed. 

Judge Joffe said: “The claimant said that his [Newman’s] failure to respond to messages showed he did not approve of and lacked sympathy for her health problems. A total failure to respond to messages about ill-health and the failure by a manager to express any concern or support to a subordinate on a significant number of occasions seemed to us to be intended to discourage time off for ill-health and working from home.

“We considered that there was good evidence that Mr Newman valued employees working long hours in the office. He was critical of Miss Raja for leaving work at the end of her contracted hours. That attitude seemed to us in these circumstances to align with an attitude of impatience with ill-health absence.”

James Cresswell, employment attorney at SA Law, said the decision should remind employers to take into account the financial and reputational risks of employment tribunal claims, in addition to the generally known effects of compelled presenteeism on health and productivity.

He added that even if the issue of home working is still contentious, recent case law should serve as a harsh reminder of the dangers of disability and/or sex discrimination when failing to take employees' needs for remote working into fair consideration. “The advice to employers remains the same; listen to your staff, be willing to be flexible and genuinely consider reasonable adjustments where possible,” he said. 

Andrew Willis, associate director of legal at Croner, said the case shows what may occur when workplace problems are not handled appropriately, and the negative effects that can result when management determines that a person is not the right ‘fit’ for their business. “This case involved several employment issues including alleged poor performance, working from home, sickness absence, discrimination and a long-hours culture. That the respondent got these so badly wrong is evidenced in the successful tribunal claim, and there are many lessons that HR can learn from this case,” he added. 

A spokesperson for Starling Bank said: “We’re pleased the tribunal found in favour of Starling on three of the five counts. But we are, of course, very disappointed in the finding against us on two counts and do not feel it fairly reflects the Starling culture or how we look after our team. 

“We are in the process of reviewing the judgment with our professional advisers and considering the position in relation to an appeal.” 

Raja could not be reached for comment.