The Financial Conduct Authority (FCA) discriminated against an associate lawyer who suffered severe fatigue caused by chronic kidney disease, an employment tribunal has found.
According to the reserved judgment, Mr R Cunningham, a barrister, started working at the FCA as an associate lawyer in 2010. In January 2017, Cunningham was diagnosed with renal problems and by April 2017 he was suffering from ‘extreme tiredness’, according to a note from his doctor. The FCA reduced his hours accordingly.
In June 2017 Cunningham commenced a period of sick leave and did not return to the FCA until February 2018. The same month, he attended his annual appraisal meeting where he was awarded a score of one, meaning ‘below standards’. As a result he did not receive a pay rise or a bonus.
The tribunal found that Cunningham’s low score was caused by poor board reports he wrote – one of which was labelled ‘disappointing’ by a manager– and his refusal to lead a particular case (‘case G’).
The tribunal found that both the factors were caused by his kidney disease. It added that Cunningham’s poor board reporting was ‘uncharacteristic’ and that he had previously been praised for his ‘strong and clear’ drafting.
It said: ‘The discriminatory effect is considerable; because of his illness he performs poorly and because he performs poorly, he does not get a pay rise, does not get a bonus and loses the prestige of being regarded as a good performer.’
While Cunningham’s claim of disability related discrimination contrary to section 15 of the Equality Act 2010 was successful, his complaint of indirect disability discrimination failed, as did his claim for failure to make reasonable adjustments.