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Burlingtons’ Win for Expelled Partner in Mental Disability Discrimination Claim

19 May 2021

Burlingtons is proud to announce its success in relation to claims of both direct disability discrimination and discrimination arising from a disability brought on behalf of a former partner of an accountancy firm who was suffering from mental illness.

The client, who was head partner at a national accountancy firm’s London office, was expelled from the partnership after sickness absence that resulted from mental illness. The respondent sought to justify its actions to expel by relying on a contractual power in the partnership agreement to expel after a certain period of sickness absence.

Prior to our client’s expulsion, the respondent had not asked for any medical reports or sought the involvement of occupational health. No prognosis was sought, even when our client indicated he might be able to return to work.

Communication from them was scarce and HR was barely involved. Instead, the respondent took deliberate steps to conceal their intentions to expel our client until after the decision to expel had been made, in order to ensure that he could not respond.

After a three-day trial on liability only (the remedy hearing is scheduled later this year) the Tribunal panel found unanimously in our client’s favour in respect of both strands of disability discrimination that were advanced:

Direct Discrimination

It was found that our client was subject to the following treatment because of his disability:

  • Expelling him from the partnership.
  • Not informing him that expulsion was being contemplated.
  • Not giving him an opportunity to make representations about his proposed expulsion.
Discrimination arising from disability

It was also found that our client was expelled from the partnership because of “something arising” in consequence of our client’s disability including his absence, his inability to do work tasks, and his need to communicate through his domestic partner.

The respondent sought to argue that had our client not been expelled because of his sickness absence, then he would have been expelled because of other matters raised which they argued amounted to breach of trust. The Tribunal found, however, that there was no possibility that our client would have been expelled for breach of trust as alleged.

Nor was the respondent successful in citing commercial or operational justifications to defend how our client was treated (NB. this could have only acted as a defence to the discrimination arising from a disability claim brought, as there is no objective justification defence to direct discrimination).    

Key Takeaways for Employers from this Case

  • Whilst a partner is not an employee and so does not enjoy the same level of rights and protection as employees or other workers, they are still protected by discrimination law and so can bring claims in the Employment Tribunal under the Equality Act 2010.
  • A contractual right to dismiss an employee or expel a partner does not trump any protections afforded by the Equality Act 2010.
  • Care should be taken before you dismiss an employee or expel a partner who may be disabled in law, and this is particularly true if they have been on long-term sick leave. You should always seek a medical opinion or get occupational health involved, particularly if you think their illness could amount to a disability.
  • Whilst HR might not normally deal with matters concerning a partner (and not an employee), partners’ sickness absence should nonetheless be considered in a similar way to that of any other worker.

If you would like to discuss any of the matters covered in this article, please contact Helena Antoniou or write to us using the contact form below.

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