Financial regulator discriminated against lawyer with kidney disease, tribunal rules

28 Aug 2019 By Maggie Baska

Employer did not consider the impact of worker’s disability when giving him a poor performance review, says judge

A financial regulator discriminated against an employee with kidney disease when it gave him a poor appraisal score without considering whether his performance was impaired by his disability, an employment tribunal (ET) has ruled. 

A London ET found the Financial Conduct Authority (FCA) had discriminated against R Cunningham, an associate lawyer who had chronic kidney disease and right upper limb difficulties, when it gave him a poor score during his yearly appraisal. 

Judge M Warren said the lawyer’s performance while he was working was “without doubt” impaired by profound fatigue and poor concentration linked to his kidney disease, and this resulted in a poor appraisal score from the FCA.

Claims of indirect discrimination and failure to make reasonable adjustments were dismissed.

Cunningham started working for the FCA in 2010, and his role involved interviewing suspects and witnesses, reviewing evidence and preparing witness statements. 

After taking an extended time off work because of surgery in 2015 and a subsequent year-long career break, the tribunal heard that Cunningham wrote to his manager, Anna Couzens, in January 2017 expressing concern that he may have other health problems in the form of chronic kidney disease. 

On 17 January, he was provided with a fit note by his doctor, which referred to him having “renal problems under investigation” and recommended that he work altered hours – six hours a day, four days a week for the next eight weeks. 

He explained this to Couzens in an email on 19 January, stating that his “condition is deteriorating, and I need to look after myself”. He proposed to work at home on Mondays and Fridays, be in the office on Tuesdays and Thursdays and rest on Wednesdays. 

Cunningham also requested that he be taken off a case he was working on, referred to in the tribunal documents as ‘case G’, as he was more invested in two other cases he was working on at the time.

Couzens discussed Cunningham’s request with an HR adviser and the head of her department. She referred to Cunningham as having a blood disorder and recommended the proposed reduced hours but suggested Cunningham not be taken off case G.

In March 2017, Couzens wrote to Cunningham to tell him that there was a vacancy for the next position up from associate lawyer, and she suggested that he may wish to apply for that post and be manager on case G. Cunningham applied for the role but was unsuccessful.

Following this, Cunningham met with the recruiting manager, Helena Varney, on 30 March and was told that he was expected to project manage case G until further notice, despite not getting the promotion. Cunningham disputed this, suggesting that the person who received the promotion should take over the case.

He reiterated this sentiment the next day in an email to Varney, in which he said he did not feel comfortable being case leader on case G. 

As Cunningham was still involved with case G, he was asked to prepare a board update. On 4 April, Varney read over the draft update prepared by Cunningham and emailed him saying that the quality of the report was “disappointing”. 

On 10 April, Cunningham had been provided a further fit note from his doctor confirming that his renal disease was being investigated, and the condition was causing him “extreme tiredness”. He was certified fit to work for the next three months on the basis he only worked six hours a day with one day mid-week for rest, as well as working from home as much as possible. 

Two days later, Couzens wrote to Cunningham to confirm it would not be appropriate for him to continue his full role and reduced his hours, but said he would continue as lead on case G. 

The dispute over Cunningham’s involvement on case G continued until he took sick leave on 15 June. He cited an occupational health report, which confirmed he had been diagnosed with chronic kidney disease and was experiencing symptoms that impacted on his day-to-day functioning, including fatigue and poor concentration. 

He returned to work on 2 February 2018 and was subsequently invited to an annual appraisal on 23 February, which would assess his work during the period before he went on sick leave.

His new manager, Kevin Thorpe, initially gave Cunningham a score of 1, which meant his performance was ‘below standards’ and he would not receive any bonus or pay increase. This score was based on Cunningham’s continued reluctance to lead case G, the quality of his board report and his work in the office. 

Cunningham brought claims of disability discrimination, indirect discrimination and failure to make reasonable adjustments to an east London tribunal on 1 June 2018.

The tribunal ruled that Cunningham had been discriminated against by his employer owing to his disability, but dismissed Cunningham’s other claims. 

Judge Warren said the poor board reports and Cunningham’s refusal to manage case G were “the two factors that resulted in Cunningham’s appraisal score of 1”, and therefore he was treated unfavourably because of his impaired performance, which was a result of his kidney disease.

Paul Holcroft, associate director of Croner, toldPeople Management that this case was a clear example of why employers should not underestimate the impact that a disability can have on their workers. He added that it also demonstrates how employers should be prepared to consider this when making key decisions regarding performance reviews and ongoing employment. 

"Employers should always be ready to ask further questions regarding an employee’s health if they are displaying issues in their performance that haven’t been seen previously," Holcroft said. "This could be a clear indication that a disability is negatively impacting upon them and, if managed poorly, could potentially result in a very costly discrimination claim."

The FCA declined to comment. Cunningham could not be reached for comment.

A remedy hearing is to be scheduled.

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