An employment tribunal has ruled that the Financial Conduct Authority (FCA) discriminated against an employee because of his disability after he was given a poor appraisal score because of his performance.
The employee was an associate lawyer at the regulatory body and had two disabilities, chronic kidney disease and right upper limb difficulties.
Following an absence following surgery on his right hand and a career break, the employee returned to work in December 2016 on the basis that adjustments were made, which included working three days in the office and two at home.
These hours were reduced further following the development of a kidney problem allowing him to rest. During that time the worker also requested he was taken off a particular case (Case G) that he was assigned to, in a bid to make his workload more manageable whilst his condition was investigated.
However, when an opportunity for a promotion arose, which would see him take over as the case manager on case G, he applied for it. His application was not successful, but he was told he was expected to project manage case G until further notice, which he disputed on the basis that the person who received the promotion should take over the case.
A further meeting with his line manager confirmed that he felt working on the case put him under unnecessary pressure at a time when he was unwell.
In April 2017, he was still involved with the case and was asked to prepare a board update in which members of the board expressed their disappointment at the quality of the report.
He was diagnosed with renal disease that same month and received a letter from his line manager confirming that it would not be appropriate for him to perform his full role given his condition and reduced hours, but said he should continue to lead case G. He eventually took sick leave in June 2017.
Following his return to work in February 2018 he had an annual appraisal which gave him a score of 1 claiming his performance was below standards, based on his failure to comply with the request to lead case G and the quality of the board report.
The tribunal said that: “The poor board reports and his refusal to manage case G were the two factors that resulted in Mr Cunningham’s appraisal score of 1 and therefore he was treated unfavourably because of something arising from his kidney disease, namely impaired performance caused by severe fatigue.”
They found the employee had been discriminated against due to his disability.