A woman dismissed by Accenture while living with endometriosis has won an appeal that may prompt renewed scrutiny of professional services firms’ practice of removing staff deemed ‘unpromotable’.
Sanju Pal, a manager who had spent 10 years at the consultancy, was dismissed in 2019 at the age of 36 for alleged underperformance, said to stem from not being ready for promotion within the expected timeframe. This occurred while she was managing the effects of endometriosis.
She brought a tribunal claim in 2022, which concluded that she had been unfairly dismissed. Yet she received no compensation because of the Polkey principle, which allows a tribunal to find a dismissal procedurally unfair but still deny compensation if it believes the outcome would have been the same had a fair process been followed.
Her other claims of wrongful dismissal, direct race discrimination, direct disability discrimination, failure to make reasonable adjustments and discrimination arising from disability were all rejected at that stage.
Last week, however, the Employment Appeal Tribunal found that the original tribunal had not properly considered whether Pal was disabled at the relevant times, nor whether she had been treated unfavourably because of something arising from disability.
The EAT also ruled that the earlier tribunal had misapplied the Polkey reduction. As a result, Pal’s compensation and discrimination claims will return to the lower tribunal for a fresh hearing.
In its judgment, the EAT drew attention to the fairness of “up-or-out” systems used by some professional services firms, where staff may be dismissed if managers decide they are unlikely to progress.
Senior judge James Tayler also criticised the original tribunal for making “highly adverse comments” about Pal’s credibility, “to the extent of totally disregarding” her impact statement.
He noted that employees are “entitled to know the process that applies to them in dismissal situations”, adding that Pal could “be forgiven for any confusion” given the mismatch between the policy and the process actually used.
Pal has called for legal reform to ensure women diagnosed with endometriosis receive specific workplace protections and access to reasonable adjustments. She also supports a campaign, backed by more than 100,000 signatures, for statutory paid menstrual leave of up to three days a month for those with conditions such as endometriosis and adenomyosis.
She told the Times she hoped the ruling might “dismantle” the “unfair employment procedure of the corporate world”.
Her solicitor, Gerard Airey of Kilgannon and Partners, told the newspaper that “it feels wrong that someone can be dismissed for not being ready for a promotion or for a role they don’t want”.
He added that employment law allows dismissal for capability only where it concerns “the work of the kind which he was employed to do” and the “position which the employee held”, not for failing to meet the standard of a more senior role.
Pal was diagnosed with endometriosis in 2018 and underwent surgery. Accenture dismissed her three months after her phased return to work concluded. She has crowdfunded her legal challenge and still needs to raise £30,000 to cover her costs.
Karen Jackson, chief executive of Didlaw, said the “most alarming” aspect of the original tribunal’s decision was the “total and utter disregard” shown for the disability evidence.
She described it as “abhorrent” that the tribunal considered endometriosis symptoms generally manageable and “wilfully disregarded” Pal’s account of her condition, which was supported by medical documentation.
A spokesman for Accenture said the firm was “unable to comment about an ongoing legal matter”.
The tribunal heard that managers at Pal’s level would typically expect to reach senior manager within three to four years. Sickness absence may be factored into performance assessments.
“Time at level” was an important measure, though staff could be dismissed before exceeding the expected timeframe or retained even if they had gone beyond it.
Performance reviews took place twice a year, at mid-year and year-end, with each employee receiving a ‘talent outcome’. Underperformance included a lack of steady progress towards the next level or gaps in performance at the current one.
Employees judged to be underperforming might receive a ‘not progressing’ rating, signalling the need for substantial improvement. Although support and training were available, many employees in this position chose to leave for other roles.
This article is based on a piece written for Personnel Today
