A disabled director of leading legal aid firm Duncan Lewis was unfairly dismissed over absences from work and his failure to report them, an employment tribunal has ruled.
The tribunal also partially upheld Chinedu Orogbu’s claims of disability discrimination and failure by the firm to make reasonable adjustments.
Employment Judge Emily Gordon Walker said Mr Orogbu started work at Duncan Lewis in February 2018 as a director in the housing department, reporting to managing director Nina Joshi.
He was its sole member in the Dalston branch in East London and was given latitude in meeting his billing target of three times salary as it was a new department – but he never met the target during his employment.
At a preliminary hearing in June, another 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.
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.”
The judge accepted Mr Orogbu’s oral evidence that it was “not until after his dismissal, and not having the responsibility to his clients, that he had the mental energy to obtain and collate medical evidence”.
The solicitor admitted failing to carry out his employment role on 70 days between April and October 2020. “These are the days when the claimant carried out no work. There were other dates when he carried out very little work.”
Mr Orogbu 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 the solicitor’s fatigue had become debilitating.
At a performance meeting in October 2020, Ms Joshi told him that the unreported absences were “gross misconduct” and that his performance was “wholly unacceptable”, such that he should have been dismissed a year before. Mr Orogbu discussed his health issues at the meeting.
He was dismissed in November 2020, which the firm said was because of his failure to report his absences but the tribunal found was also because of the absences themselves.
The tribunal found that Mr Orogbu was unable to report his absences because of his ill health, which deteriorated from March 2020.
“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 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 absences and failure to report them “should have been investigated by obtaining medical evidence, either through an occupational health referral or by obtaining a report from the claimant’s GP”.
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. Judge Gordon Walker said practice manager Jason Bruce had “made up his mind” by the beginning of December 2020 and was “simply going through the motions” on the appeal.
“We find that Mr Bruce’s suspicions about the claimant’s dishonesty tainted the appeal process,” the tribunal said, adding that there were no reasonable grounds for these suspicions.
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 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’s 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.
The case will now move to a remedy hearing.
Last year, at an early stage of proceedings, Duncan Lewis was ordered to pay Mr Orogbu costs of £6,500 after the tribunal set aside a default judgment caused by its internal failures.