A back-to-front case reported in the Daily Mail Online last week (a friend told me) concerned the mixed fortunes of Lockheed Martin PA Dawn Bailey in her Employment Tribunal claims against the defence giant for disability and age discrimination.  

Ms Bailey suffered from sarcoidosis, a complaint which was found in her case to constitute a statutory disability.  The allegation was that her boss had been unsympathetic, telling her that her illness and several weeks’ absence as a result was “disruptive to his work” and that of the others she served.  There had been a lack of “proactive and sympathetic support” from HR, said the Tribunal, and Ms Bailey was found to have been marginalised to some extent in that “her own withdrawn behaviour was met with a degree of cold-shouldering”.   

The finding of disability discrimination as a result is troubling if the implication is that telling a sick employee (whether or not statutorily disabled) that their illness is disruptive is tantamount to discrimination on disability grounds.  After all, a fair procedure for a sickness dismissal must necessarily involve telling the employee of the difficulties which the absence is causing and inviting representations on the point.  Without a clear case as to the adverse impact which the absence has upon the employer, showing the dismissal to be fair will be very difficult.  Ms Bailey was PA to Lockheed Martin’s CEO, a role sufficiently vital (at least to him) that she earned £75,000, and it is therefore not hard to understand the angst which her extended or repeated absence would cause him.  In addition, “cold-shouldering” and “marginalising” are obviously issues of perception to some extent, and we must bear in mind that for every employee who makes the same suggestion as Ms Bailey, there will be another who claims that in making no adjustments to relax the initial workload on his return from sick leave, the employer is also failing to comply with its duty to make reasonable adjustments.  

The even odder part of the decision relates to the failure of Ms Bailey’s age discrimination claim.  This was largely based on repeated comments by her boss that he should “trade her in for a younger model”.  Fairly cut and dried, one might think, but the Tribunal concluded that the comments had been “intended to be humorous and friendly”.  Hmm.   It is long-established that the intention of a harasser is irrelevant.  If age-related remarks create a hostile, humiliating or intimidating work environment (whether through content and/or repetition) that becomes harassment.  

To “acquit” here, the Tribunal therefore needed to find either that the remarks were not made at all (but they were admitted), that they were not age-related (which they clearly were), that Ms Bailey was not upset by them (which she obviously was) or that it was not reasonable for her to take them amiss.  But if you were 52, had been told repeatedly that your absence was disruptive and were suffering from a complaint which left you drained and depressed, surely the evidence required to show that you were not upset would have to be pretty phenomenal?  Little surprise that Ms Bailey is considering an appeal on the point, though what compensation it would bring her above and beyond the disability finding is unclear.   Overall it is tempting to think (at least on the basis of the Mail report) that the Tribunal has upheld the wrong bit of the claim here.