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A former Day Lewis pharmacy assistant who was let go while on sick leave and on extended probation has been awarded just under £19,000 by an employment tribunal in Reading. 

A.L Baker, who suffers from diabetes, cluster migraines, depression and back pain, was awarded a total of £18,746.13 at a tribunal last November, the report of which was published this week. The compensation to Mrs Baker comprised £14,000 plus £1,630.17 interest for injury to feelings and £2,844.40 plus £271.56 in backdated statutory sick pay. 

Mrs Baker was let go from the company on May 26, 2023 after eight months’ employment. At the time her employment ended she had been “persistently absent” due to suffering with migraine since April 18, something the tribunal acknowledged was a valid cause of concern for her employer. 

On April 19 Mrs Baker received a letter explaining that her probation was being extended for three months, but while the letter said there had been “insufficient opportunity” to assess her performance it did not make explicit that this was due to her absences from work. 

Mrs Baker’s attempts to reach HR to understand which aspects of her performance were lacking did not receive a response, and it was only on April 24 that Miss Kant, one of the pharmacists managing the branch Mrs Baker worked at, sent her a WhatsApp explaining that it was “possibly because of attendance,” which the tribunal described as a “casual way to explain the situation” and which “apparently didn’t clarify matters for the claimant”.  

This came after a performance review on March 14 carried out by Miss Kant after which  a report was produced stating: “Probation passed with no issues, we will continue with Anna’s training.” The tribunal found this “curious” as Mrs Baker’s probation was not due to end until April 30, and noted that the inclusion of a statement on probation within a performance review was “contrary to the normal practice”.

“This is one of those occasions where the tribunal is unable to make a definitive finding about the circumstances that are before us,” said the judge’s report as they noted there was some ambiguity around who included this statement, which Miss Kant denied having written. 

On April 24, 2023, Miss Kant emailed regional support manager Danielle Brennan saying: “We don’t want her anymore, sick leave again, counter assistant the easiest role to replace.”

The employment judge said: “This must be a reference, we think, to the 17 April 2023 sick note covering seven days which is stated to be due to a headache.”

On May 23 Mrs Baker was invited to rearrange a probation interview after a three-week disability-related sickness period covered by a fit note had ended. On May 26, she had a meeting with Ms Brennan who dismissed Mrs Baker. 

“No reason was given [during the dismissal meeting] for the company being unable to confirm the claimant’s probationary period in the letter confirming termination of employment,” the judge noted. 

The judge said: “When we look for the reason why Ms Brennan (who made the decision) changed from her planned course of action of extending the probationary period (which was done on 19 April 2023) to dismissal without providing assistance to the claimant and without having the discussion of shortcomings envisaged in the probation section of the company handbook, we are satisfied that her change in approach and failure to follow policy before moving to dismissal was at least in part motivated by the disability related sickness absence that started on 17 April 2023.

“The claimant has therefore shown that the failure to follow that part of the probationary policy that requires the respondent to discuss her shortcomings and provide her with assistance, was at least, in part, motivated by disability-related sickness absence.

“The respondent has not shown that failing to follow the policy was a proportionate means of achieving a legitimate aim. We accept that the aim of business efficiency by securing reliable attendance was legitimate but when they have a policy it should in normal circumstances be followed.”

Day Lewis had accepted the allegation of discrimination for a reason arising in consequence of disability and another allegation that it had failed to make reasonable adjustments to avoid Mrs Baker being disadvantaged compared to someone who did not have her disability.

Other allegations brought by Mrs Baker, including direct discrimination on account of her disability, were contested by Day Lewis and were dismissed by the judge.

"The claimant should be put in a position that she would have been in had she not been dismissed on 26 May 2023, if the probationary policy had been followed and if adjustments had been made," said the judge as they decided on financial compensation "towards the lower end of the middle bracket" for cases of discriminatory behaviour. 

A Day Lewis spokesperson told P3pharmacy: “As a values-led company, we remain committed to fair and respectful workplace practices. We do not comment on individual employment matters.”