This article also appeared on the online news platform Daily Business and can be viewed here.
As far as the law is concerned, a person is disabled if they have an impairment that is long term and has a substantial adverse effect on their day-to-day life. Some conditions render a person automatically disabled under the law meaning they do not have to prove they fall within the definition of disabled and are protected from discrimination. Cancer is one such condition. The tribunal case of Willis V NatWest Bank demonstrates what can go wrong when employers fall foul of these protections.
Ms Willis had worked for NatWest for five years when she was made redundant in 2018 and began looking for alternative roles within the bank. She was based in London and was ultimately seconded to Edinburgh to fulfil a role there for an initial three-month period which was extended by nine months ending in February 2020.
After her mid-year review in this role, when her performance was ranked as “good”, Ms Willis asked her line manager for an update about relocating the role to London, and the potential of being made a permanent employee. Her line manager assured her that she was “working on it” although during the tribunal hearing the line manager admitted that approval was not being sought for relocation of the role.
In August 2019 Ms Willis was diagnosed with colon cancer and informed her employers. She worked twice a week from the office and the remainder from home, including when she needed hospital scans or treatment, and would make up lost time on her return.
In September 2019 Ms Willis was informed her line manager was changing to someone who had more time to support her and later that month, her previous line manager had a call with HR and was informed Ms Willis was to have chemotherapy, and radiotherapy every day, followed by surgery in January 2020. The subject of terminating her secondment early was discussed during this call due to the critical nature of the work Ms Willis was delivering. However, no action was taken on early termination and Ms Willis did not take any time off, continuing to work mainly from home.
In October Ms Willis had a telephone call with Occupational Health but recommendations for adjustments such as reduced workload and flexible hours were not followed up on.
Then on joining a regular Monday team call following her treatment, Ms Willis was informed she was no longer required at those meetings which left her feeling humiliated.
In February 2020 Ms Willis informed her line manager that she would undergo surgery in March and require 4-8 weeks off to recover. She also expressed concern that she would not find another role within the bank and would need to look elsewhere. Her manager told her this thought was “ridiculous”, assuring her that she would ask HR for the secondment to be extended.
In fact, NatWest had decided that Ms Willis would not be returning to her role following her sick leave and Ms Willis was notified that a one-month extension had been agreed and her employment would terminate on 4 April 2020 by reason of redundancy. Ms Willis who unsuccessfully looked for alternative roles within the bank whilst recuperating from her surgery, took this to the Employment Tribunal and made claims for unfair dismissal and for disability discrimination.
Her claim of discrimination arising from disability was successful. In order to make this finding the tribunal had to ask: was Ms Willis treated unfavourably and, if so, was this because of her diagnosis?
Changing Ms Willis’s reporting line was found to be a detrimental change based on her absence and telling her that it was “ridiculous” to worry about needing to apply for other roles was also found to be unfavourable treatment.
In relation to the Monday meeting, NatWest claimed this was intended to be supportive. However, the tribunal concluded that if that was the case, it should have been discussed with Ms Willis.
To successfully defend a claim of this type an employer must show the unfavourable treatment was a proportionate means of achieving a legitimate aim, and in this case, NatWest claimed the aim was efficient management of their human resources in light of Ms Willis’s circumstances. While the tribunal accepted that this could be a legitimate aim, in this case NatWest’s actions were not a proportionate means of achieving that.
The unfair dismissal claim was also successful as the tribunal decided Ms Willis was not dismissed by reason of redundancy. The decision to dismiss was tainted with discrimination.
This case serves as a reminder for employers that cases involving disability should be handled sensitively. Measures were put in place, which NatWest claimed were intended to be supportive, but the tribunal emphasised that in order for the measures to be considered a reasonable adjustment Ms Willis would need to have been consulted.
Open communication is key, and such failures can be costly; as, in this case where Ms Willis was awarded a total of £87,699.84.
As always, it pays to take advice.
Natalia Milne is a legal manager at Navigator Employment Law, a Vialex company.