There has been a sharp rise in complaints and the threat of litigation aimed at businesses over the past five years. Cityam reports nearly half all complaints are made by employees and a further surge is expected when the furlough scheme ends. The most common disputes raised by employees are wrongful dismissal, the leading complaint, with discrimination and harassment in the workplace following close behind, as well as constructive dismissal, together with other issues linked with injury, illness or stress as a result of work also rising.
Daniel Theron, a partner, pointed out "employers and their HR departments should be aware that in employment law disputes it is essential to follow the procedures clearly set down. This is particularly important for businesses to ensure that there are no breaches of The Employment Act 2010 in relation to matters that relate to the health, including the mental health, of the employee" he further commented, "employers have a duty to ensure that accommodations are extended to employees with disabilities and it should be remembered that awards made by the Employment Tribunal related to disability are without limit."
The Equality Act 2010 makes it clear that disability is a 'protected characteristic'. The highly experienced lawyers in Giambrone's employment law team suggest that before embarking on a dismissal, regardless of the evidence in hand, the safest course of action may be to seek legal advice to make absolutely sure that the proposed course of action does not breach the law.
The recent case involving David Barrow, a senior manager of 36 years standing, with the UK division of the American engineering company Kellogg, Brown and Root (KBR) is a stark warning to all substantial organisations that may be thinking that an individual employee would not be prepared to challenge an international company. Mr Barrow was ignominiously dismissed following a series of events beginning when his health began to deteriorate. He was prescribed strong oral steroids to treat a persistent skin rash. The steroids seriously affected his mental health, symptoms that were well known to be a side effect, leading him to display agitated behaviour, which in turn led to clashes with his line manager. During the course of his decline, KBR summarily dismissed him giving him less than an hour to remove his possessions and ignominiously escorted him from the building in full view of the staff.
Less than a month after his dismissal Mr. Barrow was subsequently discovered to be suffering from a rare form of cancer. When his serious health condition was revealed, an attempt was made to organise a retrospective procedure to support the suggestion that Mr. Barrow was disruptive, about which the Tribunal was scathing, stating that it had "little difficulty in recognising" that KBR had "dressed up" David Barrow's termination as a breakdown in trust and confidence and agreeing that the witness testimony presented by KBR was a "ruse" to dismiss David Barrow.
The Tribunal concluded that "no reasonable employer would have acted in the way the Respondent did in dismissing an employee who had spent 36 years working for the company". KBR was ordered to pay Mr. Barrow, who is unlikely to ever be able to work again, the unprecedented figure of £2,567,831.96 including £7,500 for aggravated damages.
There can be no clearer lesson to employers to execute thorough procedures that are legally sound when considering the dismissal of an employee and ensure that absolutely every step is aligned with the current employment law and can be examined and found to be entirely acceptable and correct. Not only is the financial impact significant but the reputational damage can also seriously impact on the business; especially considering the strong focus on protecting the mental well being of employees as well as their physical health, which is currently viewed as right and proper. All businesses should be alert to anything that may compromise the physical and mental health of employees that can subsequently be laid at the door of their employers.
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