In the case of Ms N Lifac v Zoyo Capital Ltd and Others ET2302190/2019 the Employment Tribunal held that an employee was subjected to disability discrimination when her employer required her to stay off work sick for a period of time.
The facts in Ms N Lifac v Zoyo Capital Ltd and Others ET2302190/2019
N Lifac (the “Claimant”) was employed by Zoyo Capital Ltd (“”) a small start-up investment fund. She was employed as a regulatory consultant to assist with ensuring the Company achieved FCA approval to set up an investment fund. The other Respondents were directors of Zoyo.
The Claimant had originally been diagnosed with bipolar disorder in 2007 and the exact diagnosis was confirmed in 2019 as Bipolar Type II with an underlying hyperthemic personality and bipolar mood disorder. She received treatment for it and was under the care of various consultants.
During the last quarter of 2018, the Claimant started to experience difficulties with a colleague and she brought various grievances. One grievance led to the Second Respondent attempting to organise mediation between the two colleagues. At the mediation the Second Respondent found the Claimant’s behaviour difficult and confrontational. A consultants’ firm then also raised concerns about the Claimant’s competency to do her role. The Second Respondent began an investigation into the Claimant’s performance.
On 15 February, the Respondent sent the Claimant a long letter inviting her to a capability hearing on 19 February. The letter contained points of concern including her ability to do her job to her communications style and volume as well as her attendance record. It was clear by this point that the Respondents had lost trust in her and were frustrated by the Claimant and concerned about the difficult working relationships she was creating within the team. The Claimant called the Second Respondent on 18 February to ask for more time to prepare for the meeting. The Claimant disclosed her Bipolar disorder and discussed with him her experience of having been catatonic at her daughter’s 18th birthday and not having slept for 3 days. The Second Respondent was largely sympathetic towards the Claimant as his wife had been diagnosed with a similar condition. The account given by the Claimant at this time led the Second Respondent to believe that she was not well and that she could not proceed with the performance review and could not come into work at that time.
On 19 February the Third Respondent wrote to the Claimant and confirmed that based on her conversation with the Second Respondent, the Claimant would be placed on sick leave and receive SSP. The Claimant was also asked to let them know when she would be well enough to attend an OH appointment and to send a doctor’s letter confirming her Bipolar diagnosis.
The Claimant in response sent the letter from her GP dated 20 February confirming her Bipolar diagnosis. The Claimant wrote an email on 22 February to the Second Respondent stating that she had not said or implied that she was unfit for work and that she was merely requesting more time to prepare her response to the allegations made by the Respondents. This clear communication was supported by the doctor’s record that she was not, when she sent the email, unwell.
On 25 February, the Respondent sent a letter to the Claimant restating she should remain on sick leave and asking her to get in touch to let them know when she could see an OH specialist. The Claimant called the Respondent on 27 February and advised the Fourth Respondent that she would be willing to see an OH doctor. No action was taken by the Respondents to organise an appointment at that time.
On 1 March, the Claimant emailed the Respondents stating that she was willing to enter into a without prejudice conversation and was happy to attend an OH meeting beforehand. On 5 March, the Respondent replied stating they were willing to have a without prejudice meeting with her on the basis that she confirms she is well enough to attend such a meeting. By doing this, they unequivocally waived the need for her to see an OH specialist whilst they are having without prejudice discussions.
The without prejudice meeting took place on 14 March 2019. The Respondent’s genuine objective appeared to be to reach a settlement with the Claimant and avoid the need to instigate formal capability proceedings against her. The Claimant’s genuine aim was to obtain a settlement and leave the Respondent. However inappropriate behaviour was shown by both sides during the meeting.
The Respondents failed to recognise that the Claimant was a potentially vulnerable unwell individual but instead saw her as someone who was out to sabotage their business. This was evidenced by their actions in recording the meeting unbeknown to the Claimant and with all three Respondents attending the meeting. The Respondents accused the Claimant of lying or deceitfully withholding her Bipolar diagnosis partly to ensure she became an employee, which gave her additional rights in respect of discrimination claims on the premise that she could bring a claim against them once she had disclosed her condition. The Tribunal concluded that this was an objectively offensive thing to say to someone in these circumstances and the Claimant was under no obligation to disclose her disability to them.
The settlement negotiations collapsed and the Claimant agreed to attend an OH meeting. The OH specialist concluded unequivocally that the Claimant was fit for work and had been fit for the previous 6 months.
The decision of the Employment Tribunal (ET)
The Employment Tribunal considered that by placing the Claimant on sick leave, this was done collectively on behalf of the First Defendant as opposed to being a single decision by any one or all of the Respondents. The Tribunal upheld the Claimant’s claims in respect of the following:
- Unlawful deduction from wages for the period from 20 February 2019 – 23 July 2019;
- Discrimination arising out of disability in relation to the requirement for her to go off sick between 22 February 2019 and 23 July 2019;
- Direct disability discrimination regarding her being placed on sick leave between 22 February and 23 July 2019; and
- Direct disability discrimination regarding the comment at the meeting on 14 March 2019 that the Claimant transitioned from contractor to employee in order to set up the First Respondent and sue them for discrimination since summer 2018.
Our lawyers’ views on the case
The original decision to place the Claimant on sick leave was not less favourable treatment. Had a comparator told the Respondent they were extremely stressed and not sleeping, needing more time to prepare for the performance review, the ET believed the Respondent would have made the same decision and said they should be on sick leave. However, from 22 February onwards, the ET stated that “if the comparator were to clearly, coherently and logically state in writing that she is in fact well enough to work and had only been asking for more time to prepare” they concluded that the Respondent would then have believed the Claimant and allowed her to return to her place of work unlike the Claimant.
The decision of the Employment Tribunal in Ms N Lifac v Zoyo Capital Ltd and Others ET2302190/2019 can be found here