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Worker with kidney disease discriminated against by Financial Conduct Authority (FCA)

An employee of the FCA who had a kidney disease was discriminated against and given a poor appraisal score. An employment tribunal ruled that the worker was discriminated against because of his disability.

Mr Cunningham who was an associate lawyer at the FCA had two disabilities, namely chronic kidney disease and right upper limb difficulties.

After surgery on his right hand in 2015 Mr Cunningham took a career break. He returned to work in December 2016 after an occupational health report state that he was fit to return if some adjustments were made.

The adjustments included working 2 days at home and 3 days in the office. These hours were further reduced in January 2017 when his kidney problem was being investigated. The hours were reduced to allow Mr Cunningham to rest.

In addition to the reduced hours Mr Cunningham also requested that he be taken of a case he had been assigned to (Case G) so that his workload to be manageable while his kidney issue was being investigated.

However, when the opportunity for promotion presented itself – even though it would mean becoming the case manager of Case G, Mr Cunningham applied for the position. He was not successful in his application.

After meeting the person who had started the recruitment process Mr Cunningham was informed that he was expected to project manage Case G until further notice. He disputed this and stated that the person who had received the promotion should take over the case. Mr Cunningham did not feel comfortable assuming the position of leader in the case if he was not appointed to do so.

Soon afterwards a further meeting was held with his line manager where Mr Cunningham confirmed that working on Case G placed him under unnecessary pressure. At that time, he was unwell.

Case G dragged on into April 2017 with Mr Cunningham still involved with it. He was asked to prepare a board update. Ms Varney, the recruitment officer wrote to both Mr Cunningham and his line manager to say that she was disappointed at the quality of the report.

Later in April 2017 Mr Cunningham’s GP wrote a note confirming that renal disease was being investigated and this condition would cause Mr Cunningham to feel very weak and tired.

A proposal for working just 6 hours a day, along with one day in the middle of the week was suggested. It was also advised that he work from home as often as possible.

Mr Cunningham’s line manager wrote him a letter confirming that it would not be possible for him to work reduced hours or perform his full role given his condition. It would, however, be acceptable for him to continue his involvement in Case G and remain as leader.

For several months until Mr Cunningham took sick leave from June 2017 continues over his involvement in Case G. Confirmation was received from the Occupational Health Centre confirming that he had been diagnosed with a chronic kidney condition. The report also stated that his condition seemed to be deteriorating, with Mr Cunningham experiencing significant symptoms. These impacted all areas of normal functioning. He experienced profound fatigue and had trouble concentrating.

On returning to work in February 2018 Mr Cunningham attended an annual appraisal at which he was given a score of ‘1’. This score indicated that his performance was sub-standard. Based on this he would not be receiving either a bonus or a pay increase. The outcome was based entirely on Mr Cunningham’s failure to lead Case G, along with the quality of his board report.

During the east London tribunal hearing, the FCA accepted the fact that Mr Cunningham had been suffering with severe fatigue during the time when he was appraised. This was due to the chronic kidney condition.

The tribunal ruled that without doubt his performance was affected by his chronic fatigue and poor concentration.

The two factors which influenced the poor appraisal score were his poor board report and failure to lead Case G. Because of this, Mr Cunningham was treated unfavourably due to a situation arising from the kidney disease. This was impaired performance which was caused by fatigue.

The tribunal rules that he was discriminated against on grounds of disability. The claim for indirect disability discrimination along with failure to make reasonable adjustments was not successful.

The tribunal hearing continues and will later release a decision whether MR Cunningham is entitled to any compensation.

The FCA has not commented on the case.

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