In Barrow v Kellog Brown and Root (UK) Ltd, the Employment Tribunal has awarded £2,567,831.97 following a finding against the employer for unfair dismissal and disability discrimination in January 2021. This is the second largest disability discrimination award ever made by the Employment Tribunal.

Though generally not known for eye-popping awards due to the amount of employment claims that are subject to caps, the Employment Tribunal does have the potential to award very large amounts of money for areas such as whistleblowing and discrimination, which are not capped.

Background

The Claimant, David Barrow, was a Head of Programme Management at Kellog Brown and Root (UK) Ltd (“KBR”), a US parented defence and government services contractor. He had worked at the company in various roles since joining as a graduate trainee in 1980. Save for two years at a competitor between 2000 and 2002, Mr Barrow had worked at KBR for 36 of the 38 years preceding his dismissal in May 2018.

In 2017, Mr Barrow began to be treated for skin itchiness and redness around his torso. Sadly this was eventually diagnosed as a form of post-viral lymphoma, a cancer. Prior to this diagnosis, other treatments were attempted in order to deal with the itchiness and rashes. One of these treatments was a steroid which began to affect Mr Barrow’s mental health, causing him to suffer episodes of mania and to be emotionally volatile.

Although Mr Barrow’s work performance had been good before then, during the course of Mr Barrow’s treatment, KBR purported to dismiss him on 5 December 2017, with him being told by his line manager that “KBR could not employ him anymore”. Mr Barrow was escorted from the office by his line manager, and KBR then wrote to staff members the following day, explaining he had been let go for poor performance.

Mr Barrow’s diagnosis of cancer was notified to KBR on 23 January 2018. For reasons not clear in the judgment, KBR conducted another dismissal process, which concluded with Mr Barrow being finally dismissed on 31 May 2018, ostensibly on grounds of a breakdown in the implied term of trust and confidence.

Mr Barrow brought claims of unfair dismissal, disability discrimination, harassment, victimisation and failure to make reasonable adjustments.

Decision

Mr Barrow was successful in his claims. The Tribunal found that KBR had not identified repudiatory conduct by Mr Barrow going towards the term of trust and confidence. Instead, it seemed that the reason was a ruse to prevent the need to go through the necessary processes of a capability dismissal. While there were some disagreements between Mr Barrow and his line manager in relation to his progression at KBR, and some strongly worded emails, this did not go to the level of a breach of trust and confidence.

The second dismissal process culminating in May 2018 was deemed by the Tribunal to be a sham aimed at demonstrating a fair process, when the decision was actually predetermined, with the appeal officer simply being used as a messenger for a predetermined decision by Mr Barrow’s line manager.

Mr Barrow was successful in is claims for discrimination, disability discrimination, harassment, victimisation and failure to make reasonable adjustments as even though KBR was unaware of the cancer diagnosis at the time of the first dismissal, they were aware of the effect of the steroids on his mental health, and after they were made aware of the cancer diagnosis, they did not use the second dismissal process to adjust their perception of some of Mr Barrow’s conduct accordingly. In fact, they used his inability to attend meetings during chemotherapy as an indication of non-cooperation.

Lessons

Discrimination awards are not subject to a cap, unlike straight unfair dismissal claims and most other heads of claim in the Tribunal. In this instance, Mr Barrow was awarded “career-long loss” as his cancer, and age (60 at the time of dismissal), meant he was unlikely to work again. Aggravated damages were awarded of £7,500 as well as an award of £25,000 for pain, suffering and loss of amenity.

There was very strong evidence of pre-determination, with several emails indicating that it was decided well before the first dismissal on 5 December 2017 that Mr Barrow was to be dismissed come what may.

Employers must conduct an open minded dismissal process, with the decision makers having the freedom to come to their own conclusions. Use of ostensible decision makers as puppets in the manner attempted by KBR is likely to be exposed at Tribunal, with expensive results.