News: 1643802366

  ARM Give a man a fire and he's warm for a day, but set fire to him and he's warm for the rest of his life (Terry Pratchett, Jingo)

Brocade wrongly sacked award-winning salesman who depended on company insurance for cancer treatment

(2022/02/02)


Brocade sacked a former Sales Manager of the Year who was suffering from cancer when the company was bought by Broadcom – a decision that led to the man's health insurance being cancelled.

The details emerged when former sales engineer Mr M Richards won his case for unfair dismissal against Brocade. Reading Employment Tribunal ruled last week that managers adopted a "meaningless" redundancy consultation process.

Despite Richards suffering a heart attack when he heard about the buyout, HR personnel not only selected the 13-year company veteran for redundancy but cancelled his health insurance – despite knowing he relied on it to treat his cancer.

[1]

The company was found to have unfairly dismissed Richards but he lost his claim for disability discrimination.

Buyout and sackings

Broadcom [2]bought Brocade for $5.5bn in 2016, completing the deal the following year. At the time the semiconductor slinger wanted to get rid of Brocade's IP Networking business unit. With no buyer emerging, it decided to make some redundancies.

Selection for redundancy was simple: when the buyout completed in November 2017, Brocade staff were placed in either the Storage Area Network (SAN) unit or the IP unit. The tribunal hearing was told that everyone understood that "alignment" to the IP unit meant redundancy, ahead of Broadcom going through the legally required motions.

[3]

[4]

"The respondent's decision not to consult employees during the alignment process rendered the formal consultation process meaningless," said Employment Judge Hawksworth, presiding. Halfway through the "consultation" all IP unit staff "had their IT access removed", while their SAN colleagues were given Broadcom email addresses.

The ruling stated: "It was very clear to us from the evidence we heard and read that the decisions by senior managers as to who would be aligned to the SAN business unit were taken in an ad hoc, subjective way, without any formal assessment and without reliance on clear objective criteria."

Private health insurance cut off

When Richards found out about the Brocade buyout in 2016 he suffered a heart attack. The man was not well, having been diagnosed with renal cancer in 2005 – a year after joining the business – but the condition was successfully managed through Brocade's employee health insurance.

Richards had been successful within Brocade, winning its EMEA Sales Manager of the Year award in 2011 and rising to the rank of Director EMEA Operations, number two to EMEA veep Marcus Jewell. This didn't save him from allocation to SAN.

[5]

"The claimant said he would accept a change in role so that he could remain employed and keep his private medical insurance, even if that meant having lower responsibilities," said the judgment.

Jewell, who himself was leaving, agreed to protect Richards and redrew his role to keep him inside SAN. Brocade's UK HR department told the salesman he was in SAN.

Senior managers, however, had other ideas. With Jewell leaving, his number two had no role, they said. Jewell was not happy. A Skype chat with someone identified in the judgment only as Brocade's "UK HR lead" revealed what was really going on.

MJ: bit pissed with [Stuart Cooper, VP Systems Engineering EMEA] et al on this I worked to save them and they have thrown 2 under the bus

HR: pressure on numbers I think

MJ: I get it, but this is not objective there are weaker people

HR: talking to [Mr Cooper] this was a role based decision rather than skills or capacity

Meanwhile, Richards was given the bad news by an HR worker, named as "Ms Dhanoa from HR." She said the company's change of heart was handled at "corporate level" and "no notes were taken" of the meeting – but offered him a settlement agreement, Richards having instructed solicitors by this point.

The tribunal recounted:

As a result of the dismissal, the claimant lost his access to private medical insurance. This has affected the treatment he receives. He has longer waiting times for diagnosis and treatment and less continuity of care than previously. This has caused him increased pain and worry and has had a significant impact on his quality of life and overall health.

No health insurer would take on Richards; either his pre-existing diagnosis or the cost of the premiums made it impossible for him to find new cover.

[6]Tech contractor loses IR35 tribunal appeal: 'Right' to substitute didn't mean he could, say judges

[7]IBM bosses wrongly sacked channel salesman after Tech Data joint venture failed, tribunal rules

[8]Informatica UKI veep was rightfully sacked over Highways England $5k golf jolly, says tribunal

[9]Another UK government limb that can't get IR35 right: Court service pays taxman £12.5m

An unnamed "senior manager for global benefits" within Brocade made the decision to cut off the life-extending insurance policy, telling Richards through Ms Dhanoa that he would have to pay his own way.

Richards won his case for unfair dismissal and failure to make reasonable adjustments for his disability, Brocade having failed to apply an objective redundancy policy or adequately consult with him. His complaints of direct and indirect age and disability discrimination failed.

[10]

"We have not found 'something more' from which we could conclude that the difference in treatment was because of the claimant's disability. The problem with the respondent's approach was that it failed to give proper consideration to the claimant's disability," concluded the judge.

The full judgement is [11]here [PDF]. ®

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[1] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2Yfq4uz3MeBbefPN@M@EQEAAAAJg&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0

[2] https://www.theregister.com/2016/11/02/broadcom_buys_brocade/

[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44Yfq4uz3MeBbefPN@M@EQEAAAAJg&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0

[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33Yfq4uz3MeBbefPN@M@EQEAAAAJg&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0

[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44Yfq4uz3MeBbefPN@M@EQEAAAAJg&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0

[6] https://www.theregister.com/2021/06/15/techie_robert_lee_loses_ir35_tribunal_appeal_to_hmrc/

[7] https://www.theregister.com/2022/01/05/ibm_tss_redundancy_biased_inadequate/

[8] https://www.theregister.com/2021/10/21/informatica_vp_sacked_golf_trip_employment_tribunal/

[9] https://www.theregister.com/2021/08/23/uk_court_service_ir35/

[10] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33Yfq4uz3MeBbefPN@M@EQEAAAAJg&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0

[11] https://regmedia.co.uk/2022/02/02/brocade_trib_judge.pdf

[12] https://whitepapers.theregister.com/



A timely reminder

Loyal Commenter

We should all be worried about the government's ongoing stealth privatisation of the NHS, lest we end up in the same situation a few years down the line; relying on expensive private health insurance for vital life-saving cancer treatment.

Re: A timely reminder

Anonymous Coward

This case is in the UK, however it seems it is still the case he was getting better (or at least, more timely, which can be important) treatment privately.

A friend was also wrongly dropped from the UK branch of an international company during a minor reshuffle after they developed a serious medical condition. Was not based on performance, and they also won a settlement, discrimination of this kind seems to not be uncommon.

Re: A timely reminder

Loyal Commenter

This is exactly the stealth privatisation that I'm talking about. The NHS is underfunded (the government habitually gives budget increases that are below the increase in demand, and often below inflation, whilst crowing about "record funding"), so private health care is going to be quicker. Demand outstrips supply in the NHS to such an extent that "outsourcing" of things like routine scans is often done to private establishments by necessity. This takes money from the publicly funded NHS and transfers it to private hands. That's a nice little earner for those who invest in the companies providing the privatised healthcare. You won't have to look very hard to find their connection to government.

Re: A timely reminder

Anonymous Coward

There is a fundamental flaw in medical provision worldwide, but particularly for state-funded medical care like the NHS, in that demand will always outstrip resources.

There will always be new, innovative and often expensive treatments coming down the line which could benefit patients.

And where there is an increasing population, there will always be more potential patients.

Although I'm not defending below inflation funding of the NHS, in particular, it must be seen that you cannot put an ever increasing percentage of the country's GDP, and more importantly, it's government's income, mainy derived through taxation, into the healthcare system.

So, you have to put limits on the spend. And if there are limits, there will always be people who could benefit from new treatments, but who won't and who will feel like they've been discriminated against.

Unlike some countries, in the UK, private medical insurance is not seen as a replacement for the NHS, but as a way of getting quicker and possibly more comfortable treatment. So losing company health insurance is not the death note for people that it may be in other countries. There is always the NHS to fall back on (although I have a cautionary tail that I won't share here).

This is good and bad. Good, it allows people who have the resources to be seen more quickly. But bad, because the medical insurers and providers know that they can drop some expensive conditions like a hot potato, and concentrate on the more lucrative, cheaper and more profitable treatments. This has the effect of the publicly funded NHS losing some of the easy care treatments, but being left with the complex and expensive treatments, which skew the spending per patient statistics.

If the NHS becomes an insurance funded service, as some people state is going to happen, things can only get worse, so instead of the clinical commissioning groups being in control of the budgets, it will end up being the insurance companies, who have a profit motive. This must be avoided.

Re: A timely reminder

Anonymous Coward

>There is always the NHS to fall back on...

This applies more literally than many people realise. Let's say you've taken advantage of your private medical insurance to get slightly faster access to treatment. If you were to suffer a severe reaction to that treatment then in all probability the next step for your private health provider is to call an NHS ambulance to come and pick you up and take you to A&E.

Private healthcare is only profitable because they choose not to do the hard and unprofitable parts.

Re: A timely reminder

Binraider

When basic services under NHS terms are routinely unavailable e.g. seeing a GP because they spend 30 minutes filling in forms in response to a 5 minute appointment... Is it any wonder there is a shortfall?

One cannot help but think that "poor" services are a by-product of an organisation hell bent on destroying the system for their own financial gain.

The NHS employs about 1-in-20 staff in the UK, direct or indirect. How many of those are manglers, versus frontline personnel? (Quite a lot).

Eliminating red tape and undoing mistakes of successive blue and new-red governments; establishing effective procurement practises (instead of a dozen NHS trusts doing disparate things, badly) would go so much further. And let's be honest, if the private sector did step up to fill this function instead of the NHS, what I describe is EXACTLY what they would set out to do to make themselves profitable.

I am resigned to the fact that we are going the way of the US where an aspirin will cost $100 in the not too distant future. Turkeys have to wake up to what they are facing to choose a different direction.

Re: A timely reminder

Loyal Commenter

There will always be new, innovative and often expensive treatments coming down the line which could benefit patients.

This is true, but wait until you see how eye-wateringly expensive old, non-innovative, and otherwise cheap treatments can be under private provision. When you provide the same product or service, but add in the means to extract profit from it, it is always going to be more expensive if provided privately, rather than publicly. Just try being diabetic in the US.

Re: A timely reminder

Loyal Commenter

...oh, and what you are describing is basically the function of NICE, which is effectively the safety valve which weighs cost vs benefit within the NHS. They are responsible for working out whether that expensive cancer treatment that might extend your life for six months is worth not funding an entire obs and gynae ward for a month.

Re: A timely reminder

msknight

There is no stealth privatisation of the NHS. It's been happening under everyone's nose, by dictate of EU policy that required contracts to be offered to all member states. As a result, somewhere between a third to two thirds of the NHS is already privatised, depending on where you draw the lines on numbers.

It even got so bad that Beardy took the NHS to court and got a reported 2 million settlement out of the NHS when a contract was not renewed. https://davidallengreen.com/2020/05/when-virgin-care-sued-the-nhs-and-how-virgin-have-since-misdirected-and-misrepresented-about-what-happened/

Actually, leaving the EU does give the ability to reverse the NHS privatisation... not that the government will take that opportunity however. There are also long standing worries that the EU itself will undergo a centralisation of national health and privatisation of its own. This article is worth a read - https://www.newstatesman.com/politics/the-staggers/2013/12/how-eu-making-nhs-privatisation-permanent - and demonstrates what was going on nearly a decade ago.

This isn't stealth anything.... it's happening right in front of your eyes.

Re: A timely reminder

Peter Gathercole

There is a difference between the outsourcing of the provision of healthcare, and outsourcing the funding of healthcare.

In this case, it's the funding that's the issue.

The outsourcing of the provision, particularly parts like operating the buildings, cleaning, equipment supply, and employment of non-medical personnel is already well established.

In NHS hospitals, I believe that most clinical personnel are still directly employed by the NHS trusts.

Re: A timely reminder

msknight

It's not as simple as that, unfortunately. Clinicians split their time between NHS and private practice (varies) so you could argue that they're contracted by the NHS rather than directly employed. The NHS also uses bank staff from private agencies and that is another issue again - https://www.england.nhs.uk/2018/08/nhs-could-free-480m-limiting-use-temporary-staffing-agencies/ - even some cleaners are a mix of NHS and private with a pay argument looming https://www.bbc.co.uk/news/uk-england-london-60188438 it's all too complicated to get an easy handle on, and differs between trusts. You'd have to look at any particular trust, in detail, to find out what the exact situation is.

Re: A timely reminder

Warm Braw

In fact, a significant chunk of the NHS has always been run by private businesses. Pharmacies are private businesses, as are (most) GP surgeries and dentists. The issue is making sure the private interests are subservient to the public interest.

Re: A timely reminder

Loyal Commenter

It's been happening under everyone's nose, by dictate of EU policy that required contracts to be offered to all member states.

This is the first time I've heard NHS privatisation being blamed on the EU. Can you point to the actual relevant regulations that state this, and the acts of parliament whereby they were brought into UK law, or is this entirely hearsay?

Of course, if it is the evil EU to blame, then our current government would be reversing that privatisation as a benefit of our glorious brexit utopia, n'est-ce-pas?

Re: A timely reminder

msknight

The legislation is basically the EU competition rules

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1415180510261&uri=CELEX:32014L0024

https://www.bma.org.uk/media/1344/bma-brexit-briefing-competition-and-procurement-2017.pdf

https://corporateeurope.org/en/power-lobbies/2017/06/creeping-privatisation-healthcare

..."Healthcare is a national competence, not the remit of the EU. Right? Yes and No. Rulings from the European Court of Justice, and the European Commission’s policies of recent years, mean that “Services delivered by national health systems are, as a rule, now considered as an economic activity”.1 For a long time, member states argued healthcare is not an economic activity, as most providers do not intend to make a profit.2 But its treatment as one means EU rules on the internal market (free movement of goods, persons, capital and services), public procurement and state aid, in principle apply to healthcare services."... etc. ... it's been the case for a while.

http://www.caef.org.uk/d97frnt.html

https://fullfact.org/europe/does-ttip-mean-privatisation-nhs/

It is a heck of a rabbit hole, being honest.

Re: A timely reminder

Anonymous Coward

" Demand outstrips supply in the NHS"

You can ration by price or ration by scarcity (i.e. queues). Pick one.

Hint: always chose price.

Re: A timely reminder

Loyal Commenter

You can ration by price or ration by scarcity (i.e. queues). Pick one.

Actually, like most things in life, this is being presented as a binary choice where it is not.

The NHS has NICE, which weighs the cost/benefit ratio of individual treatments / medications and decides which can be afforded, essentially rationing by price.

A&E departments triage people, depending on the urgency and seriousness of their conditions, and so on, essentially rationing by urgency.

GPs offer appointments on a mix of first-come-first-served and seriousness, to fill their capacity, which is kind-of rationing by scarcity.

The NHS is not one big homogeneous blob that does everything the same way.

Re: A timely reminder

Phil O'Sophical

the government habitually gives budget increases that are below the increase in demand, and often below inflation,

False. NHS spending increases have been consistently above inflation since the mid 1950s, under all parties except for a brief glitch under Callaghan's Labour government in 1978. It's about 7% of GDP today, compared to 3% in 1955.

The real problem is that medical treatment has evolved spectacularly over the past 50 years, and costs have gone through the roof. When the NHS was founded, noone could have anticipated treatments for a single person that cost tens of thousands of pounds per week, yet today the NHS is expected to fund them.

Re: A timely reminder

Loyal Commenter

At what point did healthcare for all, free at the point of use, paid for by those who can afford it (the founding principles of the NHS) become far-right politics?

I think you might need to read some books, and not ones written by David Icke, or Steve Bannon.

Make the company pay

Cereberus

The company should be made liable for any and all ongoing costs for medical treatment.

If he is unable to get cover himself because of the condition which was covered at the time of employment, and he is unable to reasonably replace that cover then the company should pick treatments costs up, or pay any health insurance payments (regardless of how excessive ) to provide him with the same level of cover.

Re: Make the company pay

Anonymous Coward

>The company should be made liable for any and all ongoing costs for medical treatment.

The company will probably point out that there are not any ongoing costs for medical treatment, as he is fully covered by the NHS, which will be providing the same (or probably higher) standards of care than his local Nuffield. His insurer will likely have made the same point when they jettisoned him from the plan and his care provider will have said exactly the same thing too.

The NHS will not hesitate to continue to execute the care plan established by his private specialists, to exactly the same timelines, because they're working to exactly the same standards of care.

Because the NHS is an institution we can be proud of and depend on, not one that needs the consent of your employer to try and save your life.

Re: Make the company pay

oiseau

The company should be made liable for any and all ongoing costs ...

+1

On reading this article it came to my mind that someone should have gone to have a quiet chat with the ... unnamed "senior manager for global benefits" within Brocade ... and ...

But that would be wrong.

It is just a side effect of my utter indignation.

But as the world is round, we can expect that whoever decided to cut off the life-extending insurance policy for this poor chap will hopefully receive equal treatment from someone else at some point in their life.

If not, just get run over by a #$&*+ bus.

O.

Psychopath

DeathSquid

Psychopath (n.)

1. A person with a personality disorder indicated by a pattern of lying, cunning, manipulating, glibness, exploiting, heedlessness, arrogance, delusions of grandeur, sexual promiscuity, low self-control, disregard for morality, lack of acceptance of responsibility, callousness, and lack of empathy and remorse.

2. A member of the HR team.

Re: Psychopath

deadlockvictim

To be fair to HR, they simply do what they are told to do.

I can't imagine they like it much.

The real bastards are the ones in senior management for whom Legal & HR (née Personnel) are merely means to satisfy their whims / yearly targets / whatever you want to call it.

Hock Tan is a heartless asshole

baka

I know Broadcom is well viewed by investors because Hock Tan is a heartless asshole that demands these kinds of actions, but man, I wish some of these investors would personally understand how ruthless he really is. I was in a company that was acquired by Avago/Broadcom, and during a company-wide all hands meeting, he basically said I bought this company for this division directly, the others either don't have a great roadmap that shows growth, or I'll find an idiot willing to take this other division off my hands. Those of us who were in the divisions he was either going to close or sell off were shocked that he was so apparent and smirking about it. Needless to say, once he found a taker for my division, we were gone and had to be out of the building the day the sale was announced.

He had occasional flashes of silence that made his conversation perfectly
delightful.
-- Sydney Smith