PERFORMANCE MANAGEMENT NOT DISCRIMINATION ARISING FROM ANXIETY AND DEPRESSION

Gillian Crew successfully represented the Respondent, Glaxosmithkline, following an 11 day hearing in a claim for discrimination arising from disability and a failure to make reasonable adjustments arising out of a performance management process.

The Claimant, a therapy representative who was employed to promote the Respondent’s drugs, suffered from stress, anxiety and depression to the extent that he had was absent from work for two periods due to a stress related illness: one from February 2014 to August 2014, and a second from 9th October 2014 to 24th November 2014.

Prior to the Claimant going off sick with his first episode of stress-related illness, the Respondent changed the way it assessed the performance of its therapy representatives, from a sales based system, to an objective lead system, including focussing on the call quality of a therapy representative.  Concerns were raised by the Respondent as to the Claimant’s performance prior to him going off sick in February 2014.  Upon his completion of phased returns to work, the Claimant was subject to a performance management process over an eighteen month period, which resulted in him receiving a formal verbal warning, first written warning and final written warning.

In a unanimous judgment, Birmingham Employment Tribunal, by Employment Judge Woffenden, dismissed all of the Claimant’s claims. They found that the performance management process and its sanctions were capable of amounting to unfavourable treatment, but that the Claimant had wholly failed to establish the required causal link between his disability and the unfavourable treatment. The Respondent subjected the Claimant to the unfavourable treatment because of poor standard of work, particularly in relation to his call quality. It was only in retrospect that the Claimant had attributed his shortcomings to his disability, and both during the process and during evidence, blamed his poor performance either as a result of bullying and harassment by his previous line manager or denied that his performance was poor blaming bias on the part of his assessors.

Gillian Crew represented Glaxosmithkline Service Unlimited and was instructed by Eversheds Sutherland LLP.

A transcript of the case can be found here.

22nd May 2017