This case considers how employers should approach performance management where an employee is affected by a long-term health condition, specifically endometriosis. The claimant had progressed successfully within the organisation but later underwent surgery and experienced ongoing symptoms linked to her condition.

The employer operated an “up or elsewhere” performance model, requiring employees to demonstrate continuous progression or face termination. Following a period of illness and recovery, the claimant was assessed as not meeting promotion expectations and was ultimately dismissed.

The Employment Tribunal initially found that endometriosis did not meet the definition of a disability at the time of dismissal and that the employer was entitled to rely on its performance framework. However, the Employment Appeal Tribunal disagreed, finding that the Tribunal had failed to properly consider the long-term and fluctuating nature of the condition.

The EAT confirmed that temporary improvement following treatment does not remove disability protection and that conditions with cyclical or variable symptoms can still meet the legal test under the Equality Act 2010. It also criticised the use of assumptions around how a fair process might have unfolded when applying a 100% Polkey reduction.

Practical takeaways for employers:

This case highlights the legal risks associated with withdrawing a job offer after it has been accepted, even where the offer is described as “conditional”. The claimant was offered a Project Manager role which included standard pre-employment conditions such as references and right to work checks, alongside relocation support.

Following acceptance of the offer, the claimant took significant steps in reliance on it, including arranging international relocation and securing long-term accommodation. The offer was then withdrawn shortly before the agreed start date.

The Tribunal initially found that no contract existed due to the conditional nature of the offer. However, the Employment Appeal Tribunal overturned this decision, finding that a binding contract had been formed upon acceptance. The conditions were held to be conditions subsequent rather than precedent, meaning they did not prevent contract formation.

The EAT also implied a reasonable notice period of three months due to the seniority of the role and the reliance placed on the offer. As a result, the employer was found to be in breach of contract and liable for damages.

Practical takeaways for employers: