Tribunal: Ill-heath was a material reason for dismissal
A solicitor whose career in company secretarial work was “thrown severely off course” after being sacked due to having asthma has been awarded damages of £1.1m.
Employment Judge Joffe in central London said the evidence did not support Starling Bank’s contention that Gulnaz Raja would have been dismissed for poor performance in the following months anyway.
In the remedy ruling published this week, she said: “We concluded we could not properly find that there was any realistic chance that, absent the unlawful discrimination, the claimant would have been dismissed for poor performance.
“We therefore calculated the claimant’s past and future losses on the basis that she would have remained in the [bank’s] employment until she made a voluntary move to another role.”
Ms Raja joined the challenger bank in July 2019 as deputy company secretary, on a salary of £75,000, reporting to fellow solicitor Matt Newman, the chief administrative officer, general counsel and company secretary.
She had asthma that was exacerbated by environmental conditions and by respiratory infections. She said she developed a persistent cough in October 2019 due to the air conditioning in the office being very cold but her complaints about it were ignored.
In late 2019, she had five days off work because of asthma and also had to work from home on four days because of medical appointments.
At a meeting with Mr Newman in early March 2020 – at which Ms Raja had expected to raise concerns about how Covid could affect her – she was instead sacked for poor performance. He told her that he felt she was “not a Starling person” by failing to put in sufficient effort.
In its liability ruling last year, the tribunal said held that, in being dismissed, she was unfavourably treated by the bank and Mr Newman because of something arising from disability.
It said Mr Newman would also have been aware by early 2020 that future time off work was likely.
“In the context of the pandemic and the guidance which was emerging by March 2020, it would also have been clear that the claimant was likely to require some adjustments.”
It recorded how Mr Newman failed to respond to messages from Ms Raja about her health problems.
“We did not fully accept [his] account that he trusted colleagues and was seeking not to pry into health issues. 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.
“The fact that he allowed working from home tacitly by not objecting to the occasions when the claimant worked from home to attend appointments did not change our impression that he was seeking to discourage the requests by not acknowledging them.”
There was also “good evidence” that Mr Newman “valued employees working long hours in the office” and was critical of Ms 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.”
Though the tribunal acknowledged that Mr Newman may well have had some concerns and criticisms of Ms Raja – “which he did not raise properly or explore with her and as to the substance of which there is a paucity of evidence” – it did not did not accept that “they were of such significance that on their own they would have led to the claimant’s dismissal at that point”.
Only a few months earlier she had passed her probation period and been given a pay rise.
The tribunal concluded that Ms Raja’s ill-heath was a “material reason” for her dismissal.
There was also a lack of process “related to the fact that the claimant had less than two years’ service so there was felt to be no significant risk in dismissing her” without one.
But it did not uphold Ms Raja’s claims for automatic unfair dismissal or victimisation.
In the remedy ruling, the tribunal said she was dismissed “at a time when the market was very poor; she was then out of a job altogether and no doubt would have been less attractive to employers by virtue of that period of unemployment once the market picked up”.
By April 2021, the proceedings had been in the legal press “and a potential employer doing an internet search on the claimant would have discovered that she was bringing proceedings against the [bank] and that the respondents’ defence to the claim including criticism of her performance.
“We accepted that this information would have been likely to deter a proportion of employers.”
The tribunal also accepted that she had tried to find work, ending up setting up her own company to offer legal and governance services, as well as an immigration law firm and taking up a lecturing position.
The timing of the dismissal just before lockdown contributed heavily towards an award for injury to feelings. “She lost her job at what would have been the worst possible time in recent history and was presented with grave difficulties in obtaining new work at that extremely stressful and difficult time.
“We bear in mind that the claimant was very shocked, having had no warning that [Mr Newman] was unhappy with her work. The manner of the dismissal was not pleasant… The claimant was also… thrown severely off course in her chosen career.”
It ordered Starling Bank and Mr Newman to pay £541,000 for past and future loss of earnings and other benefits, and £15,000 for injury to feelings, adding a 12.5% uplift because of the failure to follow the ACAS code of practice on disciplinary and grievance procedures, and interest.
When gross up to reflect the tax Ms Raja would have to pay, this came to £1.15m.
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