Case Law - Employment in the Financial Sector

Most employers feel comfortable dismissing employees who have less than two years’ service, sometimes adopting a relatively relaxed view as to the process that needs to be followed. In many cases, that might not be a problem. However, there are a number of traps for the unwary as can be seen in the case of Raja below.

Raja v Starling Bank (First Respondent) and another (Second Respondent) ET, 2020 is an interesting case in point.  It has it all. A UK-based digital challenger bank that has gone through rapid growth in recent years, which has no physical branches and serves customers via mobile banking apps. A company, regulated by the FCA and the PRA with accusations that it had a long hours culture and a requirement that you needed to be a “Starling person” as well as Covid and Health and Safety and disability discrimination. 

The Claimant in this case qualified as a solicitor in 2010 and worked as the First Respondent’s deputy company secretary reporting into the Second Respondent who was company secretary and General Counsel. Prior to her employment by the First Respondent, she had worked as deputy company secretary at a building society and had previous posts at banks as a regulatory lawyer. At the time of her appointment, she was studying for ICSA fast track exams to qualify as a company secretary. 

The Claimant joined the First Respondent in July 2019, passed her probation in October 2019 but was dismissed in March 2020, well within the two years continuous service required to pursue a claim for unfair dismissal.  For some that might have been the end of the matter. Not in this case! The Claimant was asthmatic, and the tribunal upheld a number of her claims that her dismissal had been related to her asthma none of which required two years continuous service.  

The crux of the case

The First Respondent claimed that the Claimant was dismissed because of concerns about her performance.  However, the Claimant asserted that she had not been made aware of these before she lost her job. 

The Tribunal accepted that when he was interviewing the Claimant the Second Respondent had “said something about the appointee grabbing the role and making it their own.” The Second Respondent felt that the Claimant had not achieved this and that the Claimant was “not a Starling person”. He had been unhappy about her working from home on previous occasions and for leaving the office at her contracted time while colleagues worked later. He also had issues about the quality of her work.

The Tribunal held that the Claimant has asthma which is exacerbated by environmental conditions and by respiratory infections. The Claimant said that she developed a persistent cough in October 2019 due to the air conditioning in the office being very cold and asked to move away from it but received no response from the Second Respondent. She followed it up with a conversation with him, which the Second Respondent could not recall, advising him that it was affecting her asthma. 

On 7 November 2019, the Claimant made an appointment with her GP due to her persistent cough and emailed the second respondent: “I will need to wfh tomorrow please. I have a chest infection so will need to see my GP to change my inhalers.” She received no response. The reference to inhalers led the Tribunal to conclude that the Second Respondent had been told by the Claimant about her asthma.

In December 2019, the Claimant went on sick leave because of her asthma followed by a chest x-ray in January 2020. 

The Second Respondent said that his frustration with the Claimant’s performance had grown by January 2020, which he discussed with the First Respondent’s CEO and HR, but these discussions were not documented.

In February 2020 the Respondents made a decision to dismiss the Claimant for poor performance, but the meeting to discuss this was delayed due to the Second Respondent and the Claimant taking annual leave.

On 4 March 2020, the Claimant developed a severe cough and left the office at 4:45pm. She alleged that she asked the Second Respondent whether she could leave early due to the impact of the air conditioning. However, in what appeared to be a recurrent theme of not commenting on her wellness the Second Respondent said nothing and continued working at his computer. The Claimant worked from home the following day.

The Second Respondent told the Tribunal that he did not recollect the Claimant’s persistent cough. He said that other people he had spoken to did not recall it either and none of the Respondents’ witnesses recalled any such cough. The Second Respondent claimed that he had no discussions about her health or attendance and also said that he could not remember the Claimant “referring to her asthma in an email”; it had not ‘registered’ with him. He did not recall the reference to asthma until after she presented her claim and only remembered the reference after the email was disclosed. He was aware that asthma could range in severity and had no idea the Claimant had a disability and was conscious that she had taken some sick days. The Tribunal concluded that the Second Respondent was aware of the Claimant’s medical condition

On 9 March 2020, after receiving an email from HR about the Second Respondent’s monitoring of government advice in relation to the Covid-19 pandemic, the Claimant asked to speak to the Second Respondent about her medical condition.

He later invited her into a meeting room and informed her that she would be dismissed because of her performance. The Claimant told the Tribunal she felt “blindsided” because she thought the discussion would be about her medical issue and had received no informal or written warnings about her performance.

The claims

The Claimant alleged amongst other things:-

• Discrimination arising from her disability (s 15 Equality Act 2010 (“EqA”)), namely that she had been treated unfavourably by being dismissed.
• Automatically unfair dismissal for taking an appropriate step in a health and safety case (contrary to s100(1)(e) Employment Rights Act 1996 (“ERA”)) on the basis that the reason or principal reason for her dismissal was that, in circumstances of danger which the Claimant reasonably believed to be serious and imminent, she took appropriate steps to protect herself.  The “step” relied upon being asking the Second Respondent for a discussion about her medical condition, which she was very concerned about.
• Detriment for taking an appropriate step in a health and safety case, (s 44(1)(e) ERA (contrary to s 44 (1A) (b) ERA)) on the ground that, in circumstances of danger which the claimant reasonably believed to be serious and imminent, she took appropriate steps (being the discussion referred to above) to protect herself.

Key findings

The Tribunal held that: 

• Long hours culture, something that is not uncommon in the financial services sector, was important to the Second Respondent.  Yet there was “no good evidence that the Claimant was not completing her tasks.” 
• The Tribunal accepted that there was some evidence that the Respondents considered aspects of the Claimant’s work was below standard.  However, documentary evidence confirming the Claimant’s lack of performance and indicating any substantial feedback was absent leading the Tribunal to conclude that “there was insufficient evidence before us to determine whether the concerns were significant.”  
• The Second Respondent’s total failure to respond to any of the Claimant’s messages about her ill health (for example, “I won’t be in today because I have flu” met with no response) demonstrated that he did not approve of and lacked sympathy for her health problems and the fact that he never expressed any concern or support on a significant number of occasions, appeared to the Tribunal to be intended to discourage time off for ill health and working from home. His assertions that he did not like to pry was met with incredulity by the Tribunal who commented “It seemed to us that it is a usual part of managerial responsibilities to at least express concern and extend an offer of support to an employee who reports being unwell. Human beings regularly express concern or make general enquiries about one another’s health without needing to pry into sensitive details or being seen as doing so.”
• The fact that the Second Respondent allowed working from home tacitly by not objecting to the occasions when the Claimant advised him that she would be working from home to attend appointments did not change the Tribunal’s impression that he was seeking to discourage the requests by not acknowledging them.
• The Second Respondent’s attitude towards working from home, and the fact that the Claimant would need to occasionally work from home to manage her asthma, had, in the Tribunal’s view, influenced his decision to dismiss the Claimant.
• Passing the Claimant’s probation without any comment on alleged failings and sending her a letter stating that “in recognition of your outstanding contribution to Starling, your salary will increase to £….. with effect from the 1st of January 2020.” And thanking her “for her [hard] work to date” did not suggest poor performance. The Second Respondent’s subsequent assertions that he gave all of his team a pay rise that year [and] that the reference to ‘outstanding contribution’ was because it was a standard letter used for all employees did not assist the Respondents’ cause.
• Such basic failures allowed the Tribunal to prefer the Claimant’s evidence where there was any conflict such as her assertion that the CEO told her ‘you are doing such a good job’ or in determining whether any performance related concerns had been raised at the end of probation.
• The Tribunal also concluded that the Second Respondent “was well aware that the Claimant wanted a meeting to discuss her medical condition”.
• The Tribunal found that the Second Respondent “was critical of the claimant for leaving work at the end of her contracted hours. That attitude seemed to us in these circumstances to align with an attitude of impatience with ill health absence.”
• As to the day of the dismissal the Tribunal considered that the Second Respondent had not actually planned to dismiss Claimant that day as there was no meeting invitation, letter or HR representative present. Neither had HR’s advice about the Claimant’s termination which the Respondents said had been provided prior to the meeting been recorded in writing.  The Tribunal concluded that the second respondent had decided to bring forward the dismissal when he realised the Claimant might ask about reasonable adjustments in respect of her medical issues.

The Tribunal agreed that the Claimant had been treated unfavourably because of something arising from disability in respect of her dismissal. The Tribunal concluded that her ‘ill-health absences and need to work from home and her likely requirement for further time off in particular were a material reason for her dismissal’.

Whilst it did not uphold her dismissal on the grounds of health and safety (as they concluded that the dismissal was disability related), the Tribunal also found that the Claimant was subjected to detriment because the First Respondent did not hold a meeting to discuss her health and safety concerns.

Comment

Clients frequently make the point that they have not put anything in writing as a good thing. There is merit in such an approach in certain circumstances, particularly when you consider the increasingly proactive use of DSARs in employment litigation and what might need to be handed over in discovery. However, Tribunals are creatures of process.  Although the start up/rapid growth nature of the First Respondent can cut some leeway having nothing in writing is never a good idea. Game planning, setting the scene and laying the paper trail before any conversations are had with employees about terminations is more often than not essential.

Whilst a more relaxed approach can be adopted with employees with less than two years’ service complaints from employees about their health need careful consideration. Even then, many businesses will form a decision as to whether the disability is “genuine” in their eyes or “the cause of the poor performance” and take a view on dismissing before an employee reaches two years continuous service as being the less risky move. However, there are pitfalls particularly when it comes to performance issues related to disabled employees. For many, that might be the commercial risk that they take and no doubt the Respondents will be arguing that they would have dismissed the Claimant in any event in a hope to reduce compensation payable.

Covid has highlighted claims by employees based on breach of health and safety.  It is becoming increasingly common for employees in Tribunals to link disability discrimination to claims that discussions about their health are protected on the basis that the reason or principal reason for their treatment was in response to appropriate steps they were taking in order to protect themselves in circumstances of danger, which they reasonably believed to be serious and imminent. 

The failure to respond to an employee’s email about their health will never sit well with a Tribunal. Like it or not, employers need to come across as empathetic with their staff.

Whilst long hours, face time and developing a strong culture are important for many financial services firms, depending on the disability, such attitudes may have to be altered to accommodate disabled employees.

Lastly, reputation. Whilst the Respondents will no doubt move on, such cases have the capacity to damage reputations both commercial and personal. The Claimant pursued her claim against both her employer and her line manager. The latter is a common practice, which can have significant cost implications for managers as well as taking its toll on their own mental well being!

In a regulated environment, consideration also needs to be given to how regulators may view a firm or its employees actions – see further below.

Miss_G_Raja__vs_Starling_Bank_Limited.pdf (publishing.service.gov.uk)