Employee Dismissed From His Role Whilst Battling Cancer Awarded £2.5m By Employment Tribunal

A former employee at multinational engineering, procurement and construction company Kellog Brown & Root (KBR) has been awarded in excess of £2.5 million by an Employment Tribunal (ET).

Mr D Barrow v Kellog Brown & Root (UK) Ltd: 2303683/2018

Case summary

Mr Barrow was Director of Programme Management/Project Management and Consulting for KBR’s Government Services Division in the EMEA region and had worked there for 36 years.

In 2017, Mr Barrow started to experience health issues and was diagnosed with a skin condition. This affected his performance at work. Later in the year, he was prescribed a strong oral steroid. However, the medication impacted his behaviour and resulted in him being hyperactive and energetic. Additionally, he had trouble remaining quiet and concentrating.

Mr Barrow had been promoted recently and he enquired about a discrepancy in the related paperwork that he had received. One of KBR’s HR Director’s, Mr Brettell, responded by indicating that the reason for Mr Barrow’s promotion was to make him look more senior than one of his colleagues, who was on a higher pay grade. Mr Barrow complained, saying that he felt demoralised, undervalued and disadvantaged at being deprived of a meaningful promotion.

Mr Barrow subsequently informed Mr Brettell that the steroid he had been prescribed had affected his behaviour and emotional responses. Mr Barrow then attended an appointment with occupational health, who advised him to take time off work to allow for the level of steroids in his system to lessen.

When Mr Barrow returned to work, he attended a meeting with his line manager, Mr Barrie. Mr Barrow felt that his work objectives were not discussed at the meeting, due to time constraints, and emailed Mr Barrie after the meeting to raise this point. Mr Barrie responded by saying that he did not wish to start a protracted email exchange.

Mr Barrow was subsequently called into a meeting with another HR Director, Mr Rosbrook, who said, “KBR can no longer employ you”. Mr Barrow was given no reason for this decision and was unsure whether he had been dismissed or suspended. He was told that he had 20 minutes to leave KBR’s premises and was then escorted out of the building with his personal belongings. During the meeting, Mr Rosbrook admitted that “the Company has probably missed out several steps in its normal processes”.

Mr Barrow was later diagnosed as having a rare form of cancer and informed KBR of this.

KBR attempted to initiate a post-dated dismissal process and invited Mr Barrow to attend a meeting. Mr Barrow was unable to attend the meeting (and a further meeting arranged for another date) due to cancer treatment.

Mr Barrow was subsequently informed in writing that he had been dismissed with immediate effect with pay in lieu of notice. The letter stated that the reasons for his dismissal related to the way in which he had interacted with clients, the way in which he had worded emails to his superiors and that he had been publicly critical of KBR’s senior leadership team. The letter referred to Mr Barrow’s medication but also asserted that there had been a “breakdown in trust and confidence” in him.

Mr Barrow brought an ET claim against KBR alleging:

• Unfair dismissal;
• Direct disability discrimination;
• Harassment related to a disability;
• Discrimination arising from disability;
• Failing to make reasonable adjustments; and
• Victimisation.

Decision

The ET upheld Mr Barrow’s claims of unfair dismissal, harassment and discrimination arising from disability but dismissed the other claims.

In its judgment, the ET stated:

The ET concluded that KBR had not established that there had been a breakdown in trust and confidence and failed to consider the Claimant’s health circumstances when it dismissed him.

The ET held that Mr Barrow’s dismissal was unfair as KBR made no genuine attempt to investigate the claims in respect of his behaviour fairly and Mr Barrow had been given little information about the allegations against him. The dismissal was also held to be an act of harassment, as it was unwanted conduct related to disability.

The ET stopped short, however, of ruling that KBR had directly discriminated against Mr Barrow on grounds of disability (his diagnosis of cancer), as its alleged conduct in relation to this took place before it was made aware of his diagnosis.

The ET has ordered KBR to pay Mr Barrow £2,567,831.96, including £7,500 for aggravated damages.

Comment

This case is an extreme example of an employer reaching a decision and seeking to ‘cover its tracks’ by purporting to follow a procedure after the event. The ET was very critical of KBR’s actions, hence its decision to order it to pay aggravated damages (which is quite rare) in addition to a very considerable amount of compensation.