Wright-Turner v London Borough of Hammersmith & Fulham
Wright-Turner v London Borough of Hammersmith & Fulham Case No: 2206237/2018
Facts
Mrs R Wright-Turner ("the claimant") was employed by the London Borough of Hammersmith and Fulham ("the first respondent") as Director of Public Services Reform ("PSR") from 13 November 2017 until 9 August 2018. Prior to this role, she had been seconded to the Royal Borough of Kensington & Chelsea (RBKC) as the Humanitarian Assistance Lead Officer supporting the Grenfell Tower fire response.
The claimant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in November 2016, a lifelong condition she manages with daily medication. She was also diagnosed with Post Traumatic Stress Disorder (PTSD) in October 2017, exhibiting symptoms from August 2017 following her work on the Grenfell Tower fire aftermath. She received therapy for PTSD intermittently until late 2018. The tribunal found that at all relevant times, the claimant was disabled by reference to ADHD and PTSD/other psychological symptoms, and the respondents had knowledge of this.
Key issues arose during her employment, including the challenge of establishing the new PSR department within a limited budget and managing staff transfers following the disaggregation of Tri-borough shared services. The claimant reported working excessive hours and faced significant departmental under-resourcing.
A pivotal event was a meeting on 2 May 2018 between the claimant and Ms K Dero ("the second respondent"), the Chief Executive. In this meeting, the second respondent discussed the claimant's ADHD, using phrases like her brain "doesn't work like other people's," and questioned why it hadn't been disclosed earlier. The claimant was also told her probation period had been extended by three months, effective from a letter dated 10 May, postmarked 17 May, and received on 19 May 2018. The claimant went on sick leave from 3 May 2018 due to her mental health.
The claimant alleged direct discrimination, harassment, discrimination arising from disability, victimisation, failure to make reasonable adjustments, protected disclosures (whistleblowing), and unauthorised deductions/breach of contract. These complaints stemmed from specific treatments, including the comments made during the 2 May meeting, the extension of her probation while on sick leave, attempts to meet her while on sick leave, refusal to deal with her grievance, and her dismissal.
Held
The Employment Tribunal issued a unanimous judgment, finding:
Disability - The claimant was disabled by ADHD and PTSD/other psychological symptoms, and the respondents had knowledge of this.
Harassment - The harassment complaint succeeded in part, specifically concerning comments made during the 2 May 2018 meeting related to the claimant's ADHD, such as repeating the suggestion her brain "doesn’t work like other people’s," telling her she didn't realize she was "being serious" when discussing ADHD, and accusing her of failing to declare disabilities.. The tribunal found this was unwanted conduct related to her ADHD, creating a humiliating and offensive environment.
Direct Discrimination - The direct discrimination complaint succeeded in part. This included the extension of the claimant's probation period and her dismissal. The tribunal found the claimant established a prima facie case that these actions were because of her disabilities, and the respondents failed to provide a non-discriminatory reason. The tribunal found that but for the claimant's disability-related sickness absence, her probation would have been confirmed.
Discrimination Arising from Disability - This complaint succeeded in part. This covered the extension of her probationand her dismissal. The tribunal found these were unfavourable treatments related to her disability-related sickness absence.
ACAS Code of Practice - The first respondent failed unreasonably to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures regarding her dismissal and appeal/grievance. The claimant was not warned of poor performance, not given an opportunity to make representations, and not afforded a right to appeal.
Dismissed Complaints - All other complaints failed and were dismissed. This included:
Direct discrimination and discrimination arising from disability regarding repeated attempts to meet with the claimant while on sick leave, as respondents provided cogent non-discriminatory reasons for checking on welfare and return status.
Failure to make reasonable adjustments regarding attempts to hold meetings with her while on sick leave, as the proposed adjustment (waiting until her return) was deemed impractical due to the open-ended nature of her absence and her senior role.
Complaints related to the refusal to deal with the 1 August 2018 letter because it was deemed a "holding grievance" rather than a formal grievance requiring immediate action.
Victimisation, as the decision to dismiss the claimant was found to have been made before the protected act (the 1 August letter).
Protected disclosures (whistleblowing) generally failed as the claimant did not adequately establish the disclosures were of information tending to show a breach of legal obligation or were in the public interest, except for one disclosure on 2 February 2018 related to a funding shortfall risk. However, this single protected disclosure was not found to be causative of the upheld impugned conduct.
Unauthorised deductions from wages/breach of contract, as an overpayment was confirmed and the deduction was lawful.
Comment
The tribunal's judgment provides significant insight into the conduct of the respondents, particularly the lack of credibility of key witnesses from the London Borough of Hammersmith and Fulham.
The tribunal found that the second respondent (Ms Dero) and Mr Grimley (Interim Director for HR) gave evidence under oath which they knew to be untrue regarding the decision to extend the claimant's probation. Specifically, they claimed the probation extension was discussed and conveyed to the claimant on 2 May 2018, which the tribunal contradicted with strong factual findings, including the absence of any record of such a discussion and the actual text of the probation extension letter.
Furthermore, the tribunal found that both the probation extension letter (dated 10 May but signed on 17 May) and the termination letter (dated 31 July but signed on 2 August) were deliberately backdated. This was done to "deceive the claimant and her solicitors to maintain the fiction that the termination letter had been finalised and sent on a date before the respondents received the 1 August letter". The tribunal explicitly stated that the Council’s Chief Executive (second respondent), Interim Head of Corporate Services (Mr Grimley), Strategic Director of Governance and Finance (Mr Jolapara), and the Borough Solicitor and Monitoring Officer (Ms Davies) were involved in this deception.
The deliberate omission of any reference to the claimant's sick leave or disabilities in the termination letter was also highlighted, with the tribunal finding this was to "avoid any inference that this decision was in any way connected with the claimant’s mental health or related sickness absence". The tribunal drew adverse inferences from these deliberate misrepresentations and omissions by the respondents.
The tribunal concluded that but for the claimant's disability-related sickness absence, her probation would likely have been confirmed on 11 May, as there were no performance concerns warranting an extension. This underscores the central role of her disability and related sick leave in the unfavourable treatment she received.
Award
£4.6m in Damages Awarded to Former Employee of the London Borough of Hammersmith and Fulham
The tribunal ordered the London Borough of Hammersmith and Fulham to pay the claimant a total of £3,780,587.39 in compensation. The breakdown of the judgment on remedy is as follows:
Pecuniary losses – Past: £454,813.16
Past loss of earnings: £327,631.34
Mortgage interest losses: £92,006.00
Loans: £10,320.00
Miscellaneous losses: £24,855.82
Pecuniary losses – Future: £1,562,025.60
Future loss of earnings: £895,649.40
Loss of pension: £630,662.20
Mortgage interest rates: £13,484.00
Therapy costs: £22,230.00
Non-pecuniary losses: £155,000.00
Injury to feelings: £60,000.00
Aggravated damages: £20,000.00
Psychiatric injury: £60,000.00
Exemplary damages: £15,000.00
ACAS uplift: £271,479.85
Interest: £151,953.00
Grossing up for tax: £1,985,315.78
Total compensation awarded: £4,580,587.39
Total adjusted for interim payment received by the claimant: £3,780,587.39
The amounts for past and future loss of earnings, loss of pension, and interest were agreed upon by the parties based on the Tribunal's findings. The grossing up for tax was calculated based on the total sum to be grossed up for tax, taking into account that tax is not payable on £120,000 of the award.
