A manager who was forced out of his job when steroid medication altered his mood has been awarded more than £2.5m at an employment tribunal.
The tribunal said it had “little difficulty” in concluding that engineering and infrastructure firm Kellogg, Brown and Root (KBR) “dressed up” David Barrow’s termination as a breakdown in trust and confidence.
It also agreed with witness testimony that the company created a “ruse” to dismiss Barrow, who was a victim of unfair dismissal, disability-related harassment and unfavourable treatment for something arising in consequence of disability.
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Further claims of direct disability discrimination, failure to make reasonable adjustments and victimisation were dismissed.
Barrow was a senior employee at KBR for 36 years until he was dismissed on 6 December 2017 and, despite claims that he displayed “disruptive and challenging behaviours” by his manager, Andrew Barrie, the tribunal found Barrow to be “hugely ambitious and driven”.
The tribunal heard that, in January 2017, Barrow was promoted from level 70 to 75 in the company-wide structure without an increase in pay. But some time later Barrow noticed on the company’s system he was on level 80, which was “important as an indicator of stature and seniority”. He was concerned that he had not been informed of the change, given an amended contract of employment or provided with an appropriate pay rise.
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He discussed this with Barrie, who explained that, because he couldn’t yet be promoted to vice president, the company brought into use the “previously dormant and unused” level 80 to provide an “alternative promotion option”.
On 1 September 2017, Barrow went to see his GP about an “increasingly worrying” skin condition that was itchy and red, and made him “distressed and irritable”.
By 1 November, the condition had not settled and Barrow was prescribed a two-week course of a “strong oral steroid”, which he began taking the following day. The tribunal heard that, by 6 November, the steroid had built up in his system and started to make him hyperactive and energetic, and caused him difficulty when trying to sit quietly and concentrate. Barrow’s secretary, Cheryl Willis, became concerned for his welfare and said many times during the week that he should calm down and take things easier.
During the same week, Barrow, prompted by the discrepancies in his seniority level on the system, asked HR director Sid Brettell whether his promotion had been implemented and what had been processed. Brettell gave him a paper copy for his approval, which apparently made Barrow “angry” because it suggested he was promoted to make him look “more senior” than another colleague.
He told Brettell it was a “cynical justification for promotion” and said he felt “abused” to be promoted without a pay increase because promotions were “infrequent”.
The tribunal heard that, by 11 November, Barrow’s emotions and state of mind were “highly influenced” by the steroids, which he had been taking for more than 10 days, and were at “maximum effect”.
He told the tribunal that his head was “like a pressure cooker with all my emotions overflowing” and that he was feeling victimised, unfairly treated and undervalued by Barrie. He resolved to send him an email to explain how he felt, despite telling the tribunal he knew it was unwise to do so while in an “agitated state of mind”.
On 12 November at 1.26am, he sent Barrie a three-page email outlining his grievances, which he described as “unfair in an HR sense and abusive for me in a personal sense”. Barrie forwarded the email to Brettell, as well as the HR director for the EMEA region, Tim Rosbrook, asking for advice and suggesting that Barrow was “building a case for some sort of tribunal/constructive dismissal”.
On 13 November, Barrow emailed Brettell to explain he would take a day off, and Brettell replied that he agreed he should take time off, adding that he was concerned for his wellbeing and advising him to see his GP to take a “longer period out the office”. Barrow replied to this and highlighted that he had been taking steroids and that he was experiencing several side effects, such as “feeling, seeing or hearing things which do not exist”.
Brettell referred him to occupational health, and on 16 November he attended an appointment, which concluded he was fit for work and his main cause for stress could be dealt with by management directly, “rather than through further occupational health support”. His GP also said he would be fit to work once the steroids had left his system.
On 30 November, Barrow attended a review with Barrie, which the tribunal heard was “rushed” and cut short, so Barrow left feeling there had been “inadequate discussion” about his objectives. He explained this in an email to Barrie on 1 December, but his concerns were “dismissed”, with Barrie saying he did not intend to enter a “lengthy email dialogue” and suggesting a follow up meeting should be held. Two minutes later, Barrie forwarded the email to Rosbrook, saying “I think we need to proceed as we discussed”.
Rosbrook subsequently sacked Barrow in a meeting on 6 December. On the same day, Barrie emailed several members of the team saying that he had let Barrow go, adding that his “lack of performance over the last 18 months, combined with behaviour not commensurate with his leadership role, have made his continuance not tenable”.
Following this, KBR attempted to reach a financial settlement with Barrow but was not successful.
On 23 January 2018, Barrow’s solicitors informed KBR that he had been diagnosed with a form of lymphoma and, on 8 March, KBR replied inviting him to discuss matters relating to his employment with senior vice president Martin Simmonite. Barrow was due to start chemotherapy and was unable to attend the meeting, but his solicitors sent a letter detailing how the treatment could impact his ability to attend meetings on certain days, or cause him to cancel at short notice.
On 20 April, Barrow submitted a formal grievance and arranged a meeting with Simmonite for 30 April. Following the meeting and a subsequent internal investigation by KBR, Simmonite told Rosbrook in an email that he would not be the person to formally dismiss Barrow, warning that if the company were to “go with this we will have problems”.
However, on 30 May 2018, Simmonite wrote to Barrow formally dismissing him because of a breakdown of trust and confidence.
Judge Hyams-Parish concluded that Simmonite’s investigation process was a “sham” and that he was put forward to “give the impression the process of dismissal was fair”. He added that Barrie and Rosbrook were controlling matters “behind the scenes”, and that Simmonite did not believe there was a breakdown in trust and confidence, but Barrie “decided he wanted Barrow to go”, and the only way it could be done quickly was to “dress it up”.
Karen Jackson, managing director of Didlaw, which represented Barrow, said the ruling was a victory for every sick and disabled employee in the country, and should be a warning to all employers.
“In making an award of this magnitude the tribunal sent a clear signal of its contempt for the actions of this employer. To also get a rare aggravated damages award is the cherry on the cake,” she said. “This case should stand as a cautionary tale for all employers.”
KBR has been contacted for comment. Barrow could not be reached.