An agency worker whose contract was cancelled hours after she disclosed her mental ill health was discriminated against, a tribunal has ruled.
The Reading tribunal decided that Ms Zalejska’s manager at Principal Medical made assumptions over whether she had “sufficient resilience for the role” after learning that she suffered from depression and was on antidepressants.
The manager, Ms Nichols, also questioned how her diagnosis would affect her ability to work with “unhappy patients”.
The tribunal report added that her employer did not “seek to investigate the matter at all” or explore any “alternative solutions” before terminating her contract.
It also determined that Zalejska's mental health history did not support the judgement that she could not perform the function, would have difficulty with patients or was too ill to work.
The tribunal concluded that Principal Medical's request to Cameo Consultancy, the recruitment firm, to terminate Zalejska's contract constituted direct disability discrimination.
It added this was “less favourable treatment”, since it had been planned for her to work for them for 12 weeks but she was abruptly terminated on the third day of employment, which was a “detriment” under the Equality Act.
The tribunal heard that Zalejska moved to Principal Medical, based at Banbury Cross Health Centre, on 13 June 2022, until her dismissal on 15 June. She was given the temporary employment by Cameo Consultancy, which provides agency workers.
Zalejska's role was as a ‘temp administrator’ from Monday to Friday, with a 12-week assignment. The tribunal heard that “everything went well” for the first two days and she received positive feedback.
On 15 June, Zalejska was being trained by a colleague. She was having problems over the phone getting a patient’s payment card details. The colleague then grabbed her phone and proceeded to collect the card data.
According to Zalejska, the colleague told the patient on the phone that she had become "over stressed" and was "panicking".
She found that the atmosphere in the office was unpleasant after this incident and decided to speak to Nichols, business support and complaints manager, about it.
The tribunal heard that, when speaking to Nichols, Zalejska explained that she had some difficulty at work in 2018 after a doctor noted she had a “history of depression”.
She outlined that she had a number of mental health conditions, including depression and anxiety, and that she took antidepressants to treat her symptoms.
According to her evidence, she planned to work on 15 June, but later agreed with Nichols to take the day off.
They agreed she would contact her doctor and Nichols asked that she call her later that day to let her know if she wanted to come back to work the next day. She went home after leaving work.
The tribunal heard that Ms Loveland, senior recruitment consultant at Cameo Consulting, called her shortly after to terminate her contract.
The transcript and dismissal
The tribunal heard a transcript of a call between Loveland and Nichols in which they discussed Zalejska’s employment and future in the role.
On it, Nichols said she believed Zalejska “[is] not well enough to be here, I'm afraid" and that she was concerned about her resilience because the role required her to deal with upset patients.
However, the tribunal determined that Nichols wanted to make Loveland aware of her concerns about the contract continuing and she said she intended to speak to HR about the situation.
Loveland remarked: "OK, you'd like her to – I was going to say, you'd like her to finish with you today – we'll finish with you this morning – yeah?"
Nichols had not stated that she wished to terminate the contract immediately up until that moment, but the tribunal ruled that she had intended to convey the impression that she was considering terminating it, but without "explicitly saying so".
Loveland told Nichols “the environment isn't quite right for her", adding that, when she was ready, they would find something more "easy" for her.
The tribunal concluded the less favourable treatment towards Zalejska was because of her disclosure of her mental health issues, and that Nichols and Loveland “would have taken a different approach if faced with a very upset worker but who had not disclosed a disability”.
Employment judge Annand said: “It was the fact that the claimant disclosed her mental health condition and the fact she disclosed she was on antidepressant medication that made Nichols doubt that the claimant had sufficient resilience for the role and may have had difficulty dealing with unhappy patients.”
Annand added that the tribunal found it "surprising" that Loveland did not seek to discuss the contract's termination with Nichols and that "she did not seek to persuade Nichols to let Loveland speak to Zalejska before a decision was made, nor did she wait to inquire how she was after her GP".
The tribunal found that it was “unlikely” that a non-disabled temporary worker would have been “immediately dismissed on the basis that they had become very upset and distressed at work one morning”.
Employment lawyer’s reaction
According to Yvonne Gallagher, employment lawyer at Harbottle & Lewis, the decision should serve as a warning to anyone considering terminating an employment or engagement when there is cause to believe that a relevant "protected characteristic" is at play.
She said that the organisation for which the individual worked, as well as the agency that placed her, fell into the trap of not thoroughly investigating the reasons for the determination that termination was the "preferred outcome".
Gallagher added that the case was a reminder of the need to correctly identify the underlying basis for termination and determine whether that reason is indeed "discriminatory".
“Employers and agencies must keep in mind that Equality Act rights arise at the inception of the relationship and even before a formal role is accepted,” she said. “So even where there is a clear probationary period allowing a right to terminate on short notice, consideration of protected characteristics must form part of the analysis.”