March marks Endometriosis1 Awareness Month, which aims to highlight the condition that affects 1 in 10 women in the UK; in the hope of reducing the average diagnostic delay (currently 9 years), furthering research into causes and treatment, and supporting those with the (often debilitating) condition.
The Employment Appeal Tribunal’s recent decision in Ms S Pal v Accenture (UK) Ltd provides a timely reminder that endometriosis can amount to a disability under the Equality Act 2010 (“EqA”), if it meets the criteria of having a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. And that if it does, an employer will be under an obligation to make reasonable adjustments, including, potentially, in relation to performance management (in this case, in the context of an “up or elsewhere” performance model).”
What were the facts of the case?
Ms Pal was employed by Accenture from August 2009; initially as an Analyst, then as a Consultant (from 2011), and then as a Manager (from 2013). The next step would have been to become a Senior Manager.
Accenture had an “up or elsewhere” approach to performance management (as is, apparently, standard in the industry), under which staff were effectively required to continually develop towards the next level of seniority, within around 3 to 4 years, or risk dismissal on grounds of poor performance. Such dismissals were effected under Accenture’s Disciplinary Policy, as it did not have a separate stand-alone performance management policy.
In August 2018, Ms Pal was assessed as “not progressing”, though she was not told this until November 2018.
In September 2018, after suffering from prolonged abdominal pain, Ms Pal was diagnosed with endometriosis, and had an urgent operation to remove two ovarian cysts. She returned to work full time on 30 October 2018, but then had a second period of sickness absence from 24 November 2018; eventually returning to work on a phased basis from 9 January 2019. Initial Occupational Health advice stated that Ms Pal was not disabled for the purposes of the EqA, because her condition had not yet lasted for a full year.
In June 2019, Ms Pal was told that she had again been assessed as “not progressing”. A meeting was held to discuss her performance, at which she raised the issue of her periods of sickness absence. Ms Pal was nonetheless dismissed, with effect from 17 July 2019. She appealed her dismissal (raising the fact that she had debilitating symptoms from her endometriosis), but her appeal was unsuccessful.
Ms Pal brought Employment Tribunal (“ET”) claims for unfair dismissal and discrimination arising from disability.
What was the ET’s decision?
On the question of whether Ms Pal’s dismissal was fair
The ET found that, though there was a fair reason for Ms Pal’s dismissal (capability), the procedure that had been followed had been unfair. Specifically, Accenture had breached its Disciplinary Policy:
(i) by failing to conduct a formal investigation before dismissing, and
(ii) because the decision to dismiss had been made by colleagues who had previously been involved in the discussions about Ms Pal’s performance (and who were not therefore impartial), rather than by an independent manager who had not previously been involved in the case.
The ET commented that using a Disciplinary Policy (which was designed for dealing with misconduct), as a performance management policy, was “awkward” and “did not fit”; and that it was surprised that this discrepancy between policy and practice existed in the workplace of a “large and well resourced employer”. It suggested that, going forward, Accenture “would be well advised” to put a performance management and dismissal policy in place, which reflected the approach taken in practice in respect of such matters. The ET went on to find that the “non-alignment” between policy and practice was not only unreasonable, but also rendered Ms Pal’s dismissal unfair.
Despite these findings, the ET went on to apply a 100% “Polkey” reduction to Ms Pal’s compensatory award; on the basis of its view that, had Accenture used a policy which had been tailored specifically towards performance management, and which had reflected its otherwise reasonable approach, Ms Pal would have been dismissed fairly at the same time in any event.
On the questions of (1) whether Ms Pal’s endometriosis constituted a disability under the EqA, and (2) whether she had been discriminated against because of something arising from that disability
The ET commented that “endometriosis is a common condition, which affects many women… many… without symptoms, or with mild symptoms… [and it is often] never diagnosed”.
It found that the reason for Ms Pal’s sickness absence had been recovery from surgery; and that, because her endometriosis did not have an ongoing “substantial adverse effect”, and because she “had not proven that such an effect has lasted or is likely to last more than a year”, it did not amount to a disability.
The ET consequently found that Ms Pal had not been discriminated against because of something arising from disability, and that even if she had been, it would have been objectively justifiable as a proportionate means of achieving the legitimate aim of ensuring high performance standards and being able to provide high quality services to clients.
Ms Pal appealed to the Employment Appeal Tribunal (“EAT”).
What was the EAT’s decision?
On the unfair dismissal and 100% reduction in compensation
The EAT found that a dismissal because of a lack of readiness for promotion (as the result of the application of an “up or elsewhere” progression model) does not fall within the potentially fair statutory reason of “capability”; because capability only relates to the work that the employee is contractually employed to do, not work that they may be promoted to do. However, such a dismissal may fall within the potentially fair statutory reason of “some other substantial reason” justifying dismissal; depending on the circumstances.
The EAT overturned the 100% Polkey reduction to Ms Pal’s compensatory award. It commented that such a reduction must be assessed based on what the employer would, or might, have done, had it been given the opportunity to remedy the procedural defect in question. In this case, the ET had erred and applied the wrong test – by assuming that Accenture would have introduced a new performance management policy that would have mirrored the process that it had in fact followed. However, there was no evidence that such a policy would have been introduced, or that it would have been done within the relevant timeframe.
The EAT noted that the ET should have analysed what would, or might, have happened had Accenture complied with its existing Disciplinary Policy. This should have included consideration of whether Accenture would, or might, have applied the “up or elsewhere” progression policy, and if so, whether that would have formed the basis of a potentially fair reason for dismissal.
The EAT therefore remitted the Polkey reduction issue to a fresh ET, to be re-determined.
On the question of whether Ms Pal’s endometriosis amounted to a disability
The EAT commented that the ET had effectively ignored Ms Pal’s disability impact statement when reaching its decision. Its comment, that many women with endometriosis had no symptoms or mild symptoms, was “irrelevant to the case of [Ms Pal] who had significant symptoms and underwent surgery”.
The EAT found that the ET’s reasoning on whether or not Ms Pal’s endometriosis amounted to a disability under the EqA was “wholly inadequate”. It should have considered Ms Pal’s evidence (which was supported by “significant” medical evidence) about the effect her endometriosis had on her ability to carry out normal day-to-day activities. Instead, the ET had (wrongly) only considered Ms Pal’s absence from work (to recover from the operation), and did not analyse any other effects referred to in the medical evidence, nor consider the likelihood of recurrence. The ET had also failed to consider whether the condition would continue to have a substantial adverse effect on Ms Pal’s ability to carry out normal day-to-day activities absent medical treatment.
The EAT also found that the ET had failed to analyse whether Ms Pal’s dismissal had been motivated (even if only in part) by her sick leave and phased return to work, which both arose as a consequence of her endometriosis.
The EAT therefore also remitted the disability discrimination issue to a new ET, to be re-determined “entirely afresh”.
Key takeaways for employers
Endometriosis, which is notoriously difficult to diagnose, can have a significant impact on an employee’s day-to-day activities, including whilst at work. Importantly, it may amount to a disability under the EqA, if it satisfies the test of having a long-term substantial adverse effect on the ability to carry out normal day-to-day activities.
If an individual case of endometriosis does amount to a disability, the employer will have a legal duty to make reasonable adjustments to support the individual in question. This might, depending on the circumstances, include offering flexible working arrangements, adapting workloads, allowing more frequent periods of sickness absence and/or time off for medical appointments, offering access to Occupational Health, adapting workplace policies (including, potentially, in relation to performance management), providing relevant training to managers, and offering regular supportive check-ins.
One difficulty which employers may face, is that employees who suffer from endometriosis may feel uncomfortable discussing their condition, and their resulting needs in the workplace, with managers. It is therefore important that employers also seek to create an open, approachable, supportive culture in their workplaces, where staff feel able to talk about health issues, and seek the support they need.
Providing suitable support to staff with endometriosis is not only important from a legal compliance perspective, but also from a workplace relations and staff retention perspective.
This case also highlights the importance of having appropriate workplace policies and procedures in place, relating to performance management of staff; and the clear risks to organisations of not following a fair process when dismissing.
If this judgment raises issues about your policies or approaches around endometriosis and/or performance management, we may be able to help. Please do get in touch.
The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice.
- Endometriosis is a condition where tissue similar to the lining of the uterus (endometrial tissue) grows outside of the womb, in other parts of the body. This tissue thickens, breaks down and bleeds during the menstrual cycle each month. It can cause chronic pain, heavy periods, fatigue, nausea, bowel and/or bladder issues, fertility issues and mental health issues. There is no cure, but there are treatments that can help manage symptoms; including, in severe cases, surgery. ↩︎