An employment tribunal has rejected a motion by insurer Marshmallow Technology seeking the dismissal of a complaint filed by a former executive alleging he was terminated because of direct disability discrimination.
Andrew McCartney claimed he was hired by Marshmallow as chief financial officer on Nov. 21, 2022, with a six-month probationary period. In late March 2023, McCartney informed the company that his wife had been diagnosed with breast cancer, for which she had surgery in May of that year.
However, shortly before McCartney’s probationary period was set to end in May, he was allegedly informed that he was being dismissed. His employment with the company ended officially on Aug. 31, 2023. A few months after his employment ended, he requested the launch of a formal grievance process, which the company allegedly denied.
McCartney filed a complaint for direct disability discrimination in relation to his dismissal, as well as for the company’s failure to launch a formal grievance process. The company denied the allegations, saying that McCartney was dismissed because he was underperforming and that the formal grievance process only applies to employees.
Following a preliminary hearing, Judge Andrew Jack, acting as employment judge, dismissed Marshmallow’s application to strike out McCartney’s complaint of direct disability discrimination in connection with his dismissal, but also dismissed his complaint of direct disability discrimination in connection with the company’s alleged failure to launch a grievance process.
In his ruling, Jack said that in order to fully rule on the case, oral evidence between what really transpired was necessary and that a dispute between the facts could only be resolved via a hearing.
“I do not consider that the complaint of direct disability discrimination in relation to the dismissal has no reasonable prospect of success,” Jack ruled. “The claimant’s case regarding his dismissal is not conclusively disproved by or totally and inexplicably inconsistent with undisputed contemporaneous documents.”
McCartney had disputed the veracity of the documents the company presented which purportedly contained records of meetings, as well as the dismissal letters informing him that he was underperforming.
“There are core issues of fact that will turn on oral evidence, and should not be decided without hearing oral evidence,” he added. “The reason for the dismissal is the central dispute between the parties, and that dispute can only be resolved by hearing from the parties who actually made the decision.”
Meanwhile, the judge ruled that McCartney failed to show that the reason for refusing to instigate the grievance process was that his wife was a disabled person. He also said that the claimant also failed to show that the grievance process, if instigated, had reasonable prospect of success.
“[T]here is no intelligible connection between having a partner who is disabled and refusing to instigate grievance procedures,” he said.
Judge Jack also said that McCartney’s claim that he had suffered injury to feelings due to the rejection of his request failed to establish detriment.
Judge Jack’s reserved judgment is dated January 2, 2025, and was sent to the parties the following day.
