An astounding amount was awarded to the claimant in this case of ‘what not to do’ when it comes to disciplinary and dismissal procedures.
Charlie Wood, Associate in the employment team, examines the case of Mr D Barrow v KBR (UK) Ltd and advises on the lessons that can be learned.
The claimant, Mr Barrow, was prescribed a steroid to treat a condition which changed his behaviour, causing him to become hyperactive and energetic. It is also important to note that at this point the claimant had been employed by the company, KBR, for 36 years.
The claimant had recently received a promotion however HR admitted, in the absence of all common sense, he had only been promoted to make him look more senior compared to a colleague who was on a higher pay grade. The claimant therefore sent an email complaining that he felt under-compensated, demotivated, disadvantaged and had been denied meaningful promotion for three years.
A few days later the claimant advised HR that his medication had had an effect on his general disposition and emotional responses. He later made an appointment with occupational health where it was decided he should take some time off work. On his return to work he attended a meeting with his line manager. The meeting was brief and he was unable to discuss his work objectives due to time constraints. The claimant was unhappy about this and sent an email confirming his feelings on the matter to his line manager following the meeting.
In December 2017, the claimant was invited to a meeting with an HR director, Mr Barrie. In a perfect example of how not to handle a situation, during the meeting he was told that the company could no longer employ him and he was given 20 minutes to gather his things and leave the building. The claimant’s solicitor later claimed that he was unsure whether he had actually been dismissed or if he had been suspended. It was also unclear on what basis he had been dismissed or what the allegations against him were.
In January 2018, the claimant’s solicitor notified the respondent that the claimant had been diagnosed with a rare cancer. In March 2018 the claimant was invited to attend a meeting but was rearranged to April 2018 due to cancer treatment. The claimant received a letter in May 2018 dismissing him with immediate effect. The reasons given included concerns about how he interacted with clients, his choice of words in emails with superiors and claims he had been publicly critical of senior leadership. The respondent said there had been a breakdown in trust and confidence and therefore relied on SOSR (some other substantial reason).
The Tribunal’s decision
Unsurprisingly, the Tribunal did not agree that there had been a breakdown in trust and confidence. The Tribunal stated that ‘Mr Barrie had decided that he wanted the claimant to go, and the only way this could be done quickly was to dress it up as a breakdown in trust and confidence’. The Tribunal found that the dismissal had been unfair because there was no genuine attempt to investigate the claims about Mr Barrow’s behaviour and he was not given enough detail about the allegations. The Tribunal held that the process adopted by the respondent and the end result fell significantly outside the band of reasonable responses. The claimant was awarded in the region of £2.5 million. No, that isn’t a typo.
That being said, it is highly uncommon for there to be such an award in a tribunal – and I get the feeling this was designed to make a statement given the completely poor process the employer followed. This is the second highest discrimination award ever. The tribunal accepted that this was one of the rare cases where it was appropriate to award career-long loss in addition to a significant injury to feelings award as the claimant was 60 and had cumulatively worked for KBR for 36 years.
What not to do
It may seem obvious to most, but simply trying to throw together reasons for a dismissal in the hope that something sticks is beyond risky. There were other factors here that resulted in a finding of unfair dismissal, such as the investigation and dismissal meetings being done together – and the claimant not being given adequate time or information in order to defend the allegations against him. It is a clear case of someone no longer fitting within the business and someone wanting them gone no matter what the consequences. However, had they got proper advice, they would have been warned of the potential consequences and may have thought twice about following such a cavalier process. It is also important not to completely disregard disability-related issues.