A Birmingham firm who dismissed a worker within days of him leaving hospital post-surgery have been found in breach of employment law by a tribunal.
Mr D Russell succeeded with claims for disability related discrimination and failure to make adjustments against RLK Solicitors after a three-day hearing at the Birmingham tribunal in December.
Russell was employed by the firm as a paralegal for three months in 2017, subject to a probationary period and with no guarantee he would be given a training contract at the end.
The tribunal heard that within weeks of starting work he began to suffer from severe stomach pain and was later diagnosed with viral gastroenteritis. He was absent from work for more than a week but was anxious not to miss any more and returned despite him submitting it was difficult to do his job.
He struggled with crippling abdominal pain, was constantly tired and lacking concentration, and was uncomfortable and embarrassed at having to take constant toilet breaks.
Meanwhile solicitors at the firm, who were not told initially by Russell about his difficulties, had noticed there were issues with his performance from shortly after he started work. Russell appeared to take a long time with work-related tasks, he had no urgency, forgot about deadlines and made numerous errors in drafting documents.
The firm said it held a meeting with Russell, which he later described as an impromptu conversation lasting 10 minutes. The tribunal found that whilst Russell was told of concerns about his performance, he was not informed he was in danger of failing his probationary period.
Russell’s condition deteriorated and he collapsed at home and became violently sick. He was diagnosed with inflammatory bowel disease and required emergency surgery.
The firm decided to dismiss him less than a week after he was discharged from hospital. Its director told the tribunal Russell’s expected six-week absence was not relevant, although it was noted that a month before taking the decision the same director had decided not to terminate Russell’s employment.
Russell asked the firm to reconsider its decision and confirmed his condition was now being managed. He was informed there was no right of appeal within the probationary period for decisions made on performance.
The tribunal said Russell was seriously impacted by his illness and unwell for most of his employment, albeit no-one realised the seriousness of his condition at the time. Members were satisfied that his underperformance and various errors arose from his disability.
It was found that absence did play a part in the decision to dismiss and the firm was unable to show otherwise.
The tribunal added: ‘It is clear that the [firm] either was expressly aware that the claimant had a disability or could reasonably have been expected to know, given the information in its possession.’
Once the firm had dismissed Russell and been given more information about his condition, the tribunal said it could have held a meeting where he had the opportunity to explain how his performance was affected by illness. By not allowing him that chance, the firm was in breach of its duty to make reasonable adjustments.
The remedy for the successful claims will be determined at a future hearing.