A law firm decided against recruiting a newly qualified solicitor because of her disability, an employment tribunal has ruled, awarding her damages of £23,000, mainly for injury to feelings.
This included aggravated damages due to the overly aggressive way Foster Clay Law conducted its defence, which also led to an award of nearly £5,000 in costs.
Kandice Farrow completed the legal practice course in 2011 and had worked as a legal secretary for some years before joining Yorkshire firm Pinkney Grunwells (PG) in 2018 as a conveyancing assistant and latterly a trainee solicitor.
It was accepted before the tribunal that she was disabled by virtue of irritable bowel syndrome (IBS). Employment Judge Bright in Leeds recorded: “She had a long period of intermittent sick leave in February 2019 relating to her IBS and her employment relationship at PG became strained.
“We accepted the claimant’s evidence that PG’s lack of flexibility around hours and place of work resulted in absences and timekeeping issues.”
Ms Farrow raised a grievance against the partners and her manager at PG over being treated unfairly because of her condition. She then left PG and transferred her training contract to another firm, four months before being furlough due to Covid.
She qualified as a solicitor in July 2020 but, with that firm unable to offer her a job, she changed her profile on LinkedIn to read ‘Newly qualified solicitor seeking employment’.
She was contacted by Natalie Foster, co-founder of Foster Clay – a virtual firm since rebranded as Inspire Legal – which at the time was in the process of setting up.
The tribunal found that Ms Farrow was “careful to be forthright with Mrs Foster about her condition” to avoid what had happened at PG.
As it happened, Ms Foster’s brother suffered from IBS and her notes of the initial conversation suggested that she “had an understanding of the severity of the claimant’s symptoms and of the fact that her condition had an impact on her day-to-day activities and work that might require adjustments” – although she did not “join the dots” to realise that the condition was a disability at this stage.
Ms Foster obtained a reference from PG training partner Hayley Garnett, which stated that Ms Farrow left over a grievance and had lots of absence from work due to illness among other things.
It concluded that her “work was very good but unfortunately [she was] not present long enough to be of assistance due to sickness absences”. Ms Foster followed this up with a phone call to Ms Garnett.
A reference from the firm where Ms Farrow had been a secretary “was not glowing and identified weaknesses in time-keeping and accuracy”, while the firm where she qualified provided just a factual reference.
An hour before telling Ms Farrow that she was ending the recruitment process, Ms Foster emailed colleagues that “in light of the fact that she is NQ and will require supervision for some time, I personally do not feel comfortable with the comments made around her absence and even if she does work from home we cannot supervise properly”.
This was evidence, the tribunal said, that her primary reason was concerns about Ms Farrow’s sickness absence and timekeeping, rather than the other issues raised in the references. The firm had denied this.
In response, Ms Farrow identified her IBS as the likely cause of her rejection and asked if there was anything she could do to provide Ms Foster with “more clarity regarding my medical condition”.
Ms Foster replied: “No medical condition has any bearing on the firm’s decision to recruit.”
The tribunal accepted that the reason she did not provide reasons for her decision was that she initially thought the references were confidential.
Ten days later, Ms Farrow provided a complimentary reference from one of her supervisors at PG and Ms Foster “stated in cross-examination that had she seen that reference at the time, ‘we wouldn’t be here’”.
The tribunal took that to mean Foster Clay would have hired Ms Farrow.
It concluded that cessation of the recruitment process was not a proportionate means of achieving the legitimate aim of hiring the right person for “a newly established law firm with limited operational and/or managerial resources”.
The fact that Ms Foster actively tried to recruit Ms Farrow showed a newly qualified solicitor could fit the bill, Judge Bright said.
It would not have been disproportionate to clarify the references received – about whether the sickness absences were disability related and/or her condition had a substantial adverse effect on her day-to-day work – or to obtain further references, given the lengths to which Ms Foster had already gone.
“Another less discriminatory approach open to the respondent was to disregard anything in the reference materials obtained which potentially related to disability or sickness absence.”
The tribunal held: “The discriminatory effect of the unfavourable treatment on the claimant was significant. She was a newly qualified solicitor with a disability, who needed significant flexibility, meaning her job search was unlikely to be straightforward…
“Balancing the needs of the claimant and the respondent, on the balance of probabilities, we find that terminating the recruitment process at this stage was not proportionate in the circumstances.”
However, the tribunal held that Ms Foster did not discriminate in withholding the real reason for her decision, and that Ms Farrow’s complaint of harassment related to disability was not well-founded.
In the subsequent remedy decision, the tribunal accepted that the events caused Ms Farrow “to suffer extremely low mood and become anxious and she still had lasting effects of anxiety and depression at the time of the remedy hearing”.
The panel said it was “particularly struck by her evidence that she was made to feel that her body had failed her and she felt embarrassed about her condition”.
She received medical support from the NHS which helped her find a job six months later, but the tribunal concluded there was an 80% chance that Foster Clay would have employed her but for the discrimination.
Judge Bright was critical of the way the law firm conducted the litigation, noting that it had only conceded that Ms Farrow was disabled after another judge “took the unusual step of issuing a costs warning of his own initiative in relation to that point”.
But it continued to accuse her of exaggerating the impact of her condition, which the tribunal said was “a slur on her character”. The firm’s comments about her disability were “unnecessarily aggressive”.
Another aggravating factor was the inclusion of personal photos from Ms Farrow’s Facebook account in the respondents’ disclosure when they had “little to no evidential value regarding the impact of her condition on her day-to-day activities” – the goal could only have been to portray Ms Farrow “as a liar and/or to cause her distress”. It was “an exercise in humiliation”.
The tribunal awarded £6,442 in pecuniary loss, £16,632 for injury to feelings – including £3,000 in aggravated damages – and plus costs of £4,867, around 25% of the costs Ms Farrow had sought.
In a statement, the firm said: “This case highlights the challenges faced for businesses, especially start-ups, recruiting remotely during the pandemic, along with the importance of having watertight processes in place for recruitment given that obligations on employers and individuals begin prior to employment starting.
“The aggravating damages and the costs awarded stems from a previous firm’s advice to us, which we reserve our position on.
“Reassuringly, the tribunal made ‘no finding of malice or deliberate falsehood on the part of the respondents and Natalie Foster was not found to have had actual knowledge of disability’.”