Solicitor Sacked While Suffering Severe Fatigue; Wins Unfair Dismissal Claim (Mr C Orugbu V Duncan Lewis Solicitors Limited)

In the case of Mr C Orugbu v Duncan Lewis Solicitors Ltd, a solicitor is successful in his claim for unfair dismissal and disability discrimination.

For more information on disability discrimination and unfair dismissal, click on the highlighted text.

The Facts in Mr C Orugbu v Duncan Lewis Solicitors Ltd

Mr Orugbu (“The Claimant”) commenced employment with Duncan Lewis Solicitors (“The Respondent”) on 5 February 2018, as a Director in the housing department. His line manager was Ms Nina Joshi (Managing Director).

He was subject to performance targets that he was expected to meet, which were managed by Ms Joshi and Robert Poulter, the Performance Management Co-ordinator. However, the Claimant had difficulty meeting his billing targets. Before 2020, he billed at least 85% of his target hours, but by 2020 his billing had dropped to 57%.

Claimant Raises Mental Health Condition at Performance Review

On 24 July 2020, the Claimant attended a performance review meeting with Mr Poulter and Miss Sangita Shah (Performance Director), where they agreed upon an action plan.

The Claimant mentioned his health condition and was told that HR would be in contact regarding workplace adjustments. He then told Ms Satinder Bhari from HR about his mental health condition on 21 September 2020.

On 7 October 2020, at a performance meeting with Mr Poulter and Miss Shah, a number of issues were raised with Claimant, including his poor performance against targets. He was told by Miss Shah that this was “wholly unacceptable” and that he should have been dismissed a year ago.

At the meeting, there was also a discussion about potential adjustments including a period of unpaid leave, an option of working part-time hours, and a possible reduction in his working hours. Ms Joshi also suggested to the Claimant that if he resigned, he could reapply for his job once he recovered. If not, he was likely to face disciplinary action for gross misconduct.

On 9 November 2020, a disciplinary meeting was held despite the Claimant having requested a postponement due to having to have a tooth extracted. No decision was reached to dismiss the Claimant until a later date.

Claimant is Dismissed Due to Gross Incompetence

On 11 November 2020, the Claimant was sent a letter summarily dismissing him with effect from 12 November 2020. In a letter dated 16 November 2020, the claimant was given the reasons for his dismissal which included poor performance, poor attendance, and failure to report sickness absences.

The determining factor for the Respondent was described as the Claimant’s “gross incompetence” and “sustained and continued unauthorised absence from work”. The Respondent argued that his behaviour amounted to fundamental breaches of his employment contract. In their view, this resulted in a loss of trust and confidence in the Claimant to carry out his work and/or follow the absence management policy.

The Claimant argued that in the course of his employment:

• he was subjected to an unfair disciplinary process;
• he was less favourably treated because of his disability;
• he was unfairly dismissed
• he was dismissed because of his disability

The Decision of the Employment Tribunal

The Employment Tribunal reached the following conclusions in its judgment.

1. Unfair Dismissal

The tribunal found that the Respondent unreasonably failed to consider or commission medical evidence to enable them to fully understand the medical reasons for the Claimant’s absence, and his failure to report his absence which was related to his disability of severe fatigue. The failure to take into account or investigate his disability before dismissing him made the dismissal unfair.

2. Disability Discrimination

The tribunal found that the Respondent had constructive knowledge of the Claimant’s disability from 7 October 2020 when he disclosed his impairment (fatigue) which had a substantial adverse effect on his ability to carry out day-to-day activities.

The failure to postpone the disciplinary meeting was unfavourable treatment, as was the failure to recognise that his absence from work between September 2020 to October 2020, was something arising in consequence of his disability.  His summary dismissal did amount to disability discrimination. The tribunal also found not granting the Claimant unpaid leave to assist with managing his health condition, and not arranging an occupational health report, amounted to a failure to make reasonable adjustments.

Our Lawyers View

In this case, Duncan Lewis Solicitors failed to address the health needs of a valuable employee with a disability. Instead, they chose to focus on performance concerns and absence management procedures resulting in the dismissal being unfair and discriminatory.