Endometriosis Action Month: Pal v Accenture (UK) Ltd

Every March, Endometriosis Action Month provides an opportunity to raise awareness of a condition affecting 1 in 10 people born with a uterus.

Against this backdrop, the recent judgment of the Employment Appeal Tribunal (EAT) in the case of Ms S Pal v Accenture (UK) Ltd is both timely and significant.

Background

Sanju Pal was a long-serving employee at Accenture, working within its ‘progression-based’ model, under which employees were expected to demonstrate readiness for promotion within set timeframes. She was promoted to manager in 2013, with progression to senior manager ordinarily expected within three to four years.

Ms Pal received consecutive ‘not progressing’ performance ratings in August 2018 and March 2019. During this time, she underwent surgery in October 2018 and had a further related period of absence between 24 November 2018 and 8 January 2019.

In July 2019, Ms Pal was dismissed for alleged underperformance, but Accenture used its misconduct procedure rather than the appropriate capability one. The Employment Tribunal (ET) found that her dismissal was procedurally unfair, but awarded her zero compensation on the grounds that, had a fair procedure been followed, Ms Pal would still have been dismissed. The ET also rejected her claim for disability discrimination. Ms Pal appealed to the EAT and succeeded on all grounds.

The law

Section 98 of the Employment Rights Act 1996 (ERA) provides that, for a dismissal to be fair, an employer must show a fair reason for dismissal (such as conduct, capability or redundancy) and must follow a fair procedure.

Even where a dismissal is found to be unfair, an employee’s compensation may be reduced if the employer can demonstrate that they would have dismissed the employee even if a fair procedure had been followed. This is known as a Polkey reduction, after the case in which the principle was established. Crucially, this needs to be based on evidence, and the tribunal must ask: ‘What would the employer have done in a fair process?’

Under the Equality Act 2010, a person is considered disabled if they have a physical or mental impairment which causes a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Endometriosis and its relevance

Endometriosis is a chronic condition in which tissues similar to the lining of the womb grow elsewhere in the body. It has been found on every organ in the body. Symptoms typically include severe pelvic pain, bowel and bladder difficulties, nausea, and fatigue. Importantly, while surgery may support pain management, there is no cure and recurrence is common.

Because of its chronic, fluctuating, and sometimes debilitating nature, understanding endometriosis was central to determining whether Ms Pal met the legal definition of a ‘disabled’ person under the Equality Act 2010.

The EAT’s analysis

Ground 1 – Polkey

In dismissing Ms Pal, there were clear procedural defects. Accenture applied a misconduct-tailored procedure to what was a capability issue, failed to carry out any proper investigation, and appointed decision-makers who had previously been involved in Ms Pal’s performance management. These defects were contrary to the company’s own policy. Despite the flaws, the ET applied a 100% Polkey reduction, effectively finding that dismissal was inevitable even if Accenture corrected those defects. It reached its conclusion without any evidential basis from the employer showing that a fair and lawful process would still have resulted in a dismissal.

The EAT held that this was the wrong approach, finding that a tribunal must ask what the employer would have done if it had the opportunity to correct the error that rendered the dismissal unfair. Where a claimant’s health condition is relevant, a fair employer properly informed about endometriosis might reasonably have sought occupational health input, considered reasonable adjustments, or reassessed performance expectations, which are steps the ET failed to take into account when predicting the likely outcome.

Ground 2 – capability and ‘progression-based’ models

The EAT also examined whether dismissal for capability can fairly be based on Accenture’s ‘progression-based’ model. It emphasised that capability under section 98 of the ERA concerns an employee’s ability to perform ‘work of the kind which he was employed by the employer to do’, tying this to the contract of employment, not their readiness for promotion. Consequently, dismissing an employee simply because they are not yet promotion-ready may not amount to a fair capability reason. This aspect of the case has been remitted to the ET for reconsideration.

Ground 3 – disability

At first instance, the ET rejected Ms Pal’s disability discrimination claim. Instead of meaningfully engaging with the nature and impact of her endometriosis, the ET focused heavily on her recovery from surgery and on perceived issues with her credibility, rather than on the substance of her disability impact statement. The EAT criticised the ET for its ‘inadequate’ reasoning and analysis of the significant medical evidence from occupational health and her consultant gynaecologist. By failing to consider the fluctuating, recurrent nature of endometriosis, its long-term impact, and its associated symptoms, the ET’s analysis fell short of properly applying the statutory test for disability.

While endometriosis affects individuals differently, it is clear that for some, the condition will meet the statutory definition of disability. Whether Ms Pal does meet that definition will now be reconsidered by a freshly constituted ET.

It is understood that leave has been sought to appeal to the Court of Appeal, although it is not yet clear on what grounds.

Key takeaways

This case is a timely reminder that women’s health conditions must be properly understood and supported by appropriate evidence. Endometriosis is not automatically a disability but, for many individuals, its symptoms can be extremely limiting. Care should be taken to ensure disability is analysed holistically, taking account of fluctuating, recurrent symptoms and their long-term impact.

More broadly, evidence is the central theme of this judgment. The EAT suggested that Polkey reductions must be grounded in clear evidence of what the employer would have done in a fair process, not tribunal speculation. Where health conditions are relevant, that assessment must also reflect what a fair employer, properly informed about the condition, could reasonably have done before concluding that dismissal was inevitable.