Disabled director at leading firm unfairly dismissed, tribunal rules

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An employment tribunal has ruled that the disabled director of a leading firm was unfairly dismissed from work over absences and his failure to report them.

The tribunal also partially upheld claims of disability discrimination and the failure to make reasonable adjustments.

According to employment judge, Emily Gordon Walker, Mr Orogbu started work as a director at legal aid firm Duncan Lewis in 2018. Reporting to managing director Nina Joshi, he was the sole member in the East London branch and was given latitude in meeting his billing target as it was a new department.

An employment tribunal has ruled that the disabled director of a leading firm was unfairly dismissed from work over absences and his failure to report them.

However, at a performance meeting in October 2020, Ms Joshi told him that a number of unreported absences were “gross misconduct” and that his performance was “wholly unacceptable”, and he should have been dismissed a year before.

In November 2020, Mr Orogbu was dismissed. The firm said this was because of his failure to report his absences but the tribunal found was also because of the absences themselves.

At a preliminary hearing in June, a judge found that Mr Orogbu was a disabled person from September 2020 “due to the impairment of extreme fatigue”, the symptoms having begun in April 2019 and worsened in September that year. The tribunal also found that Mr Orogbu was unable to report his absences because of his ill health, which deteriorated from March 2020.

Judge Gordon Walker said: “The claimant’s fatigue symptoms worsened after the Covid-19 lockdown in March 2020 and remained at that worsened level until after his dismissal in November 2020.

“The claimant’s evidence, which we accept, was that his energy levels were so low that he could hardly function. He said he would have to lie down most of the day, he could not do basic tasks like open his post or wash the dishes.”

Mr Orogbu’s admitted failing to carry out his employment role on 70 days between April and October 2020. Mr Orogbu also admitted that he was aware of the absence reporting requirements and did not comply with them because he was not well enough to do so.

The tribunal noted his GP’s evidence that his fatigue had become debilitating.

“We find that the claimant was unable to carry out basic tasks at this time and that he was not thinking rationally… We accepted the oral evidence of the claimant that when he was absent, the days merged into one and he was not conscious or aware of the extent of his absence,” the tribunal said.

According to the tribunal, Duncan Lewis did not genuinely believe that the absence itself was misconduct, “given that [it] did not dispute the genuineness of the absence”, and accepted the fact of the claimant’s ill health.

Duncan Lewis “made incorrect assumptions about the claimant’s health which led them to conclude that he was grossly incompetent”. These assumptions – which meant it did not realise he was too ill to report absences – “were not reasonable grounds on which to form that belief,” the tribunal added.

According to the tribunal, the law firm’s HR department “exacerbated the situation” by failing, in July 2020 and after the October meeting, to follow up with the solicitor the issues of potential adjustments and a referral to occupational health.

Mr Orogbu appealed against his dismissal, which the law firm rejected. However, Judge Gordon Walker ruled that Mr Orogbu’s claim of unfair dismissal was well founded.

Upholding part of his disability discrimination claim, she said Duncan Lewis had constructive knowledge of Mr Orogbu’s disability from the October meeting and treated him unfavourably because of it. This was reflected by denying him the opportunity to represent himself at his disciplinary hearing, despite his request for a postponement, and by summarily dismissing him.

However, the tribunal rejected a claim that the solicitor was treated unfavourably by being asked to repay over £9,500 in overpaid wages.

The tribunal also found the firm had failed to make reasonable adjustments in relation to its requirements to meet billing targets and comply with its absence reporting policy, but not in terms of requiring him to work full-time and at home.

Duncan Lewis was ordered to pay Mr Orogbu £6,500 at an early stage proceedings last year after the tribunal set aside a default judgment caused by its internal failures.

The case will now move to a remedy hearing.

Disabled director at leading firm unfairly dismissed, tribunal rules

An employment tribunal has ruled that the disabled director of a leading firm was unfairly dismissed from work over absences and his failure to report them.

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