Employee with ADHD and PTSD awarded £4.5 million compensation after being dismissed for failing her probationary period

The Employment Tribunal has given judgment in the case of Mrs Wright-Turner v London Borough of Hammersmith and Fulham and Ms K Dero, in what is believed to be the largest award of compensation to be made by an ET in a public sector case.

Facts

Ms W-T accepted the post of Director of Public Services Reform in July 2017, which was subject to a six-month probationary period. She was involved in the response to the Grenfell Tower fire and didn't take up her new role until November 2017. By that time she had been diagnosed with Post Traumatic Stress Disorder (PTSD) as a result of her work at Grenfell. She disclosed that condition on the pre-employment health questionnaire as well as the fact that she had ADHD.

She did not get off to a good start. On her first day in work, she met with her line manager (the second respondent) who told her that she was an “outsider” and was not trusted by her colleagues. They also talked about Ms W-T's experience at Grenfell and the line manager discussed a harrowing YouTube video of the fire and her own experience of being evacuated from her home at night by the fire service. This triggered W-T's PTSD. She became visibly upset and her line manager suggested that she work from home for the next two weeks. Following this W-T confided to a friend that she would be “lucky to last the week”.

However, she settled in and got on with the job. She worked extremely long hours and senior colleagues noticed that she was often stressed, sometimes distressed and that her physical state had deteriorated. She developed marital problems and all of these factors affected her mental health.

In April she had a one-to-one with her line manager. They discussed a number of work issues and she was told that she needed to plan more efficiently and show leadership. The tribunal found, however, that she would not have come away from this meeting with the impression that her line manager had any serious concerns about her performance. 

The need to achieve results occasionally put her in conflict with others. She wrote an email to a senior leader which her line manager thought was sarcastic and over familiar. Her line manager discussed this with the recipient and discovered for the first time that W-T had ADHD. This knowledge had a profound impact on her perception of W-T. Nine days after the email had been sent, she wrote to W-T complaining about her tone. 

Ms W-T's probationary period was due to end on 11 May. On 2 May the line manager invited her for an ad-hoc meeting over coffee. During that meeting the line manager discussed W-T'S ADHD and said that W-T's “brain doesn't work like other peoples”. The line manager asked W-T why she hadn't mentioned this condition to her and W-T thought that she was accusing her of deliberately concealing her condition. The discussion became fraught and W-T thought that she was being viewed as someone with “special needs”. She found her comments humiliating and offensive. 

She was still mulling over this conversation at the end of the day and talked to several colleagues at the pub. She became upset, had a panic attack and felt unwell. She went to the toilet where she broke down and had to go to A&E. She was assessed and found to be depressed, suicidal, and traumatised, but not intoxicated. W-T was signed off from work for a month due to PTSD and acute anxiety. She informed her employer that her GP advised a complete break and should have no contact with work during this time.

Out of the blue W-T received a letter on 17 May extending her probationary period by three months. The letter was dated 10 May (the day before her probationary period ended) and the tribunal found that it had been back-dated to mislead W-T that a decision about her future had been made earlier. It mentioned performance concerns but didn't set these out.   

W-T continued to submit fit notes and raised a holding grievance on 1 August which alleged disability discrimination and harassment. The council decided to terminate her employment at the end of the extended probationary period. It sent a letter to her dated 31 July August which she received several days later. The tribunal found that the letter had been written on 2 August and had been backdated to avoid the impression that it had been created in response to the grievance. The letter lacked details about her alleged failure during probation and deliberately, didn't mention her sickness absence to give the impression that it hadn't featured in their decision.  

W-T raised a second grievance, alleging discrimination, harassment, failure to respond to her grievances, and the deliberate backdating of the termination letter and failure to allow her to appeal against her dismissal. She then brought various claims in the Employment Tribunal against her employer and her line manager personally.  

Decision

The tribunal found that:

• The line manager had harassed W-T during the ad-hoc coffee meeting in respect of her comments about her disability.
• Extending W-T's probationary period amounted to direct discrimination and discrimination arising from a disability. If W-T had not gone off sick, her position would have been confirmed and her probationary period signed off.
• W-T's dismissal was direct discrimination. A hypothetical comparator who didn't have her disabilities would not have been dismissed in these circumstances. It also amounted to discrimination arising from a disability: M-T was on sick leave and hadn't been warned or given the opportunity to make representations or to appeal against the decision. The council also didn't consider further extending her probationary period as an alternative. 

Award

W-T was awarded a staggering £4,580,587.39 made up of: 

• Losses up to the date of the hearing of £450k
• Future loss of earnings of almost £1.5 million which including substantial pension losses, mortgage interest rates and private therapy costs: the tribunal found that W-T's health had been significantly impaired to the point where it was unlikely she would be able to work again. As a result, this element of her award included her future salary losses until retirement.
• Injury to feelings of £60k (the top end of the Vento scale)
• Psychiatric injury of £60k to reflect the severity of harm W-T had suffered
• Aggravated damages of £20k: the Council witnesses' deliberate attempts to mislead the tribunal were seen as aggravating factors.
• Exemplary damages of £15k: these are highly unusual because they are designed to be punitive rather than compensatory. In this case they were granted because the actions of the council were unconstitutional. 
• The council had failed to follow the Acas Code of Practice before dismissing her and this added £270k to the total
• Interest and grossing up accounted for the rest

The size of the award reflects the fact that the claimant was an extremely senior and successful public servant, on a career path that had every chance of taking her to the very top of her profession. The effects of the dismissal on W-T were severe. In the period since her dismissal, her health had been damaged so significantly as to make it likely that she would never work again, her marriage had ended, and repossession proceedings had been started because she had been unable to pay mortgage arrears which had arisen due to her being out of work. 

Comment

The council has said that it will appeal the ‘vastly excessive and ’highly unprecedented' payout which is estimated to cost each council taxpayer an additional £25. 

My view is that the council only has itself to blame for the outcome of this litigation. It ignored its own probationary period policy and, inexplicably didn't obtain medical evidence into W-T's conditions or instruct OH to find out how it could support her. Instead it focused on how to get rid of her after she was signed off from work.

Its staff also lied: they backdated letters and then attempted to mislead the tribunal about this. The tribunal named several people - including the council's solicitor who was involved in the deception. That is damning. One can only hope that the council has undertaken some serious soul-searching into how people at the top of its organisation behaved so spectacularly badly. 

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