A costly dismissal? The £76 million discrimination claim

An employee who was dismissed from Gitpod last year is seeking £76 million against her former employer.

Shannon Burns was dismissed by Gitpod after drinking with colleagues at a work event in Austria, forgetting her room key and eventually sleeping overnight in a sauna. The Employment Tribunal is yet to determine the compensation to be awarded to Burns, who is seeking over £76 million, after she succeeded in bringing claims for disability discrimination.

What happened in this case?

Shannon Burns was dismissed by her employer following a work trip to Austria, where she drank with other senior members of staff after an event. After forgetting her room key, she was unable to wake up her roommate and had to sleep overnight in a sauna.

She was dismissed after the company CEO raised concerns about her “lack of professional accountability”.

Shannon Burns brought claims for:

• Failure to make reasonable adjustments, in relation to a lack of support for Burns’ ADHD during her employment
• Discrimination arising from disability, as Burns argued her dismissal was because of conduct connected to her ADHD, and
• Direct sex discrimination, as Burns argued other male staff members who were drinking at the event were not treated as harshly as her.

The Tribunal found that Burns’ ADHD had significantly contributed to her behaviour in Austria, which led to her eventual dismissal. It noted in particular that her condition contributed to her forgetfulness, which was the cause of her forgetting her room key.

The Tribunal also found that Gitpod knew about her condition and, despite Burns requesting reasonable adjustments, nothing had been done to help her with the difficulties she faced with her ADHD.

Burns did not succeed with her direct sex discrimination claim, but the Tribunal found in her favour for the two disability discrimination claims.

Why is the compensation amount sought so high?

Burns is seeking £76 million for future loss of earnings and is able to do so given the awards for discrimination claims is uncapped. Burns argues that she is no longer able to work in the tech industry because of PTSD caused by her dismissal and treatment.

Her salary was £220,000 per year with around £70,000 in annual bonuses so it is likely to be a significant award even if it does not reach the heights that Burns is seeking.

It should be noted that the Tribunal has not awarded £76 million in damages, but it has allowed the argument to proceed despite Gitpod seeking a deposit order for the portion of the claim exceeding £1 million, on the basis it had little reasonable prospect of success. The judge considering the application for the deposit order found it was a highly unusual amount sought but could not, at that stage, say it had little reasonable prospect of success.

A remedy hearing will be listed to determine the award based on Burns’ Schedule of Loss of £76 million.

What does this mean for you as an employer?

While the case is still ongoing and it remains to be seen whether Burns will be able to claim the full £76 million from her former employer, this case should serve as a reminder that discrimination awards are not subjected to a statutory limit. Therefore, discrimination claims brought by senior managers can quickly become very expensive.

Other key factors to consider as an employer are:

• Ensure you are responding to requests for reasonable adjustments, no matter the level of seniority of the individual
• Investigate properly and thoroughly whether an employee’s disability may have contributed to any alleged misconduct
• Avoid treating all misconduct cases in the same way – make sure to investigate as per the above point
• Consider any medical evidence where appropriate
• Make sure to keep complete and accurate records of why decisions have been reached and made
• Ensure all managers/senior staff are trained in recognising and appropriately dealing with any disabilities before commencing any disciplinary action.