Ms Sanju Pal succeeds in appeal against Accenture at the Employment Appeal Tribunal

Ms Sanju Pal succeeds in appeal against Accenture at the Employment Appeal Tribunal – Tribunal’s reasoning on disability discrimination due to endometriosis was “wholly inadequate” and the decision could not stand

Sanju Pal, a former manager at global management consulting firm Accenture, where she worked for a decade, was dismissed in 2019 for alleged underperformance linked to not being ready for promotion (‘the progression-based model’) within the required time at level (‘TAL’) whilst she was suffering with endometriosis. Despite winning her claim for Unfair Dismissal at the Employment Tribunal (‘ET’), her compensation was reduced by 100% and her claim for disability discrimination was rejected. Ms Pal appealed to the Employment Appeal Tribunal (‘EAT’) and her case was heard by HHJ James Tayler on 9 December 2025.

The Employment Tribunal’s findings

The Employment Tribunal held in May 2022 that Ms Pal was unfairly dismissed due to procedural failures by Accenture. Ms Pal was dismissed using a procedure that was tailored to misconduct dismissals and not capability dismissals. It was found that there were concerns around the investigation process. There were also concerns that the composition of the dismissal panel was outside the terms of the policy used, as the same people who carried out Ms Pal’s dismissal were involved in the management process. 

However, the ET found that there would be no award for Ms Pal’s loss of earnings (‘the compensatory award’) on the basis that if a fair procedure has been used, the same outcome would have been reached (the Polkey reduction). The ET also found that Ms Pal was not disabled due to her endometriosis. She appealed the decision on three grounds.

The decision of the Employment Appeal Tribunal

1.  The 100% Polkey reduction

The ET had found that Ms Pal’s dismissal was unfair because Accenture had failed to comply with its Disciplinary and Appeals policy. The EAT confirmed that a Polkey reduction is to be assessed on the basis of what the employer would, or might have done, had it had the chance to rectify the defect. If an employer gave evidence that it would not refrain from the action that made the dismissal unfair if it were to do it again, it cannot be just and equitable to assess compensation on the basis that it would then have done so.

The ET had erred by assessing what it would have done, rather than looking to Accenture to prove what it would have done had it had the opportunity to correct their policy error. In doing so the ET applied the wrong counterfactual of a 100% Polkey reduction. This ground of appeal succeeded and has been sent back to the ET to consider what would have happened if Accenture had complied with their policy requirements to undertake an independent investigation and have independent decision makers prior to dismissing Ms Pal.

2.  The progression-based model (“up or elsewhere”)

Accenture’s progression-based model in the ‘Client & Market’ career track implies that if an employee is not deemed to be ready for promotion within a certain period of time at their level, they might face dismissal. Ms Pal argued that this model is unfair in law on the basis that the Employment Rights Act 1996 only permits dismissal relating to underperformance in the position the employee held, not on the basis that an employer thinks an employee is not capable for the job at the next level up.

Upholding this ground of appeal, the EAT confirmed that an employee can only be dismissed for capability relating to “the work of the kind which he was employed by the employer to do” and that this is to be assessed on the basis of the work required under the contract of employment. This meant that Ms Pal’s dismissal under the progression-based model may not be a potentially fair reason under the heading of ‘capability’.

The EAT considered that a contract may set out that the work required may include demonstrating the ability for promotion, but the employer would still be required to show they acted fairly if the employee had not been required to actually carry out the next level of work in practice.

3.  Disability Discrimination due to Endometriosis 

Prior to her dismissal Ms Pal was also suffering from endometriosis, which was diagnosed in September 2018 when she underwent surgery for the removal of painful large cysts (endometrioma) on her ovaries. Accenture decided to terminate Ms Pal’s employment just 3 months after her phased return to work ended. The ET held that Ms Pal had not proven that her endometriosis had an ongoing substantial effect on her normal day to day activities, nor had these effects lasted or were likely to last more than a year. It was also found that Accenture had no knowledge of disability, nor could it reasonably be expected to have such knowledge.

The EAT found that as the ET had formed an extremely adverse view of Ms Pal’s credibility, they effectively ignored her disability impact statement. The ET should have considered whether it accepted some of Ms Pal’s impact statement as her evidence that she was affected by endometriosis was supported by ‘significant’ medical evidence. The ET had stated many women with endometriosis are without symptoms, or they are mild and are never diagnosed. The EAT viewed this unattributed statement as irrelevant to Ms Pal who had ‘significant symptoms and underwent surgery’. The EAT went on to hold the ET’s reasoning was “wholly inadequate” to demonstrate the ET properly analysed whether Ms Pal was a disabled person due to endometriosis.

The EAT noted that it was unclear if the ET thought recovery from surgery was not an adverse effect arising from endometriosis. The EAT stated that if an employee is absent from work because of treatment for an impairment, generally that is a substantial adverse effect on normal day-to-day activities. The ET had also not considered the likelihood of recurrence when there was a medical report already highlighting a recurrence of Ms Pal’s endometrioma in March 2019. It also failed to consider what the position would be if Ms Pal did not have medical treatment for her endometriosis.

The EAT also held that as the ET erred in its approach to whether Ms Pal was disabled, they didn’t properly assess if Accenture had knowledge or constructive knowledge of disability. The ET had failed to analyse whether Accenture had some regard to Ms Pal’s sick leave or her phased return to work in London (which arose due to her endometriosis) in deciding to dismiss her. Finally, it confirmed that the ET’s brief 2 paragraph assessment on whether the treatment of Ms Pal was a proportionate means of achieving a legitimate aim was ‘unsafe’. The ET can only carry out the necessarily rigorous balancing exercise when the other factors have been determined.

The EAT concluded that the determinations that Ms Pal was not disabled and that she was not subject to discrimination because of something arising in consequence of disability cannot stand. Ground 3 succeeded, with the matter being sent back to a newly constituted ET as it is important that Ms Pal had confidence that the remitted matters will be considered afresh.

An additional point to take away on witness credibility  

The EAT confirmed that generalised findings on credibility (such as one party is totally credible and the other is not) are rarely a useful tool for resolving specific issues of fact about which there is relevant evidence. It is nearly always better to assess the evidence relevant to the issue and then make a determination based on the balance of probabilities. Importantly it highlighted that even if a witness is unreliable about some matters, it does not mean they are not telling the truth about the issue to be determined. Reliable witnesses are still capable of being mistaken about issues.

Ms Pal is represented by Gerard Airey of Kilgannon and Partners LLP and Elaine Banton of 7BR Chambers. To read the judgment please click the link.

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.

We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.