Directors colluded to deny knowledge of employee's disability

Two directors colluded to deny knowledge of an employee’s disability before they dismissed him for alleged poor performance.

That was the finding of the Employment Appeal Tribunal (EAT) in a case involving P2CG Ltd and Mr Davis.

Davis was given notice on 4 August 2016 of the termination of his employment. He issued a claim alleging discrimination and harassment due to his type 1 diabetes.

The company denied that it had any knowledge of his disability when it decided to dismiss him. It disclosed an email it had received from an important client complaining about an error that had resulted in a significant overcharge.

The email specifically named Davis as the person responsible.

However, one of the company's directors later admitted to adding the name to the original email, claiming that he had just wanted to indicate that Davis had caused the error.

The Employment Tribunal found that although there were some minor performance issues during 2015, a written warning for unsatisfactory performance was only given at a review meeting in June 2016, and the company had not known of the disability at that point.

It found that Davis was diagnosed on 11 July 2016 and the director was probably informed a few days later, but he would certainly have known of the diagnosis by 3 August 2016, the day before he convened an ad hoc board meeting to resolve to dismiss Davis.

It also found that the director had amended the email to embellish the company's concerns about poor performance.

The tribunal upheld Davis’ complaints concerning the company's decision to dismiss him, and the refusal by two of its directors to acknowledge his ill health.

The EAT has upheld that decision.

It held that the tribunal was entitled on the evidence to find that the company had failed to prove that the treatment was in no sense whatsoever because of disability.

It noted that the possibility of collusion between the company's main witnesses was clear throughout the hearing.

The tribunal could legitimately draw the inference from the findings that the directors had agreed in advance to reply in the same terms to disguise the influence of Davis’ diagnosis on the dismissal decision. The tribunal’s judgment was not unfair to the directors in terms of a serious procedural irregularity. Issues of dishonesty and collusion were sufficiently advertised.

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