Willis had worked successfully for the bank since 2013 as a senior risk and compliance manager. In 2019, she was diagnosed with bowel cancer. She was working on secondment at the time. When she informed her manager of the diagnosis in August 2019, things started to go wrong.
Within a month, she was to report to a different line manager. The employment tribunal later found that this amounted to less favourable treatment.
Long-term illness in the workplace:
Willis then learned that she would require chemotherapy and radiotherapy to treat her condition. She would also need an operation in early 2020. She approached HR about this.
Documents disclosed in the tribunal proceedings revealed that management then sought advice from HR about terminating the secondment.
At her first team meeting following surgery, Willis’ manager informed her in front of her colleagues that there was no role for her. She felt humiliated.
The bank advanced the argument that this had been intended as a supportive measure to reduce her workload. The employment tribunal disagreed and considered this to be unfavourable treatment.
It also transpired that the bank had never considered to extend the secondment or to make the position permanent. The bank had also failed to advance a business case supporting Willis’ return to permanent employment at the end of the secondment period.
Furthermore, when Willis enquired about extending her secondment, her manager had branded the suggestion as ‘ridiculous’. The bank also denied Willis an end-of-year appraisal and a salary increase, unlike other members of staff.
It was evident that the bank’s behaviour was predicated on the assumption that Willis should not return to work after her treatment. In a final coup de grace, the bank had extended Willis’ secondment for one month before dismissing her and recruiting her replacement.
Ultimately, NatWest had viewed Willis as a nuisance because of her need to take sick leave. As this was related to cancer, the tribunal found that the bank had treated Willis unfavourably because of something arising from disability.
This case serves as a timely reminder that certain conditions, so-called ‘deemed disabilities’, should be dealt by employers with a lot of care.
The reason they are called deemed is that the sufferer does not face the hurdle of satisfying the definition of disability set out in the Act, namely that the impairment has a substantial adverse effect and is long-term.
This means that someone with cancer is automatically considered disabled and, generally speaking, this applies from the point of diagnosis.
Another valuable reminder to employers is that the obligation to make reasonable adjustments and to avoid unfavourable treatment is triggered once they have knowledge of an employee’s disability.
In Willis’ case, the employer should not have discriminated against her for a reason arising from the disability, i.e. the need to take periods of extended sick leave. NatWest is now facing a potential £2 million pay-out.
By Meredith Hurst, partner and joint head of the employment team at a specialist law firm Thomas Mansfield Solicitors