A solicitor working via an agency for the Government Legal Department is bringing a complaint of Disability Discrimination

This case illustrates how employers can get themselves into difficulties. The individual concerned suffered from asthma, which he is claiming is his disability, presumably arguing that it has a substantial impact on his ability to do normal day to day activities.  

It seems that the employer had organised some kind of team building exercise/away day that involved visiting a City farm.  The employee is alleging he couldn’t attend because it would worsen his asthma and that his manager’s attitude, upon emailing to point this out, was a “blatant disregard” to his health and well-being, the manager having taken the attitude that he should be fine because it was outside.

The first point to note about this sort of case is that like all arrangements for outside of work events being organised for staff, it still falls under the remit of the employment relationship, and it is potentially within the realm of claims, so employers do need to think carefully about  arrangements that they are making.  For example, this might include catering for everyone’s needs with regards food and drink, making reasonable adjustments to provide tailored meals or snacks for those with particular needs.  These requirements can of course be affected by religious considerations as well as medical requirements. 

The second thing to note about this sort of case is that it is being brought by an employee with just 4 months’ service.  It sounds as though the employee concerned was the subject of disciplinary action for misconduct in relation to data protection policies (forwarding work related emails to a private email address) and there were performance concerns – it is not unusual at the point that the employer seeks to address those sorts of issues, for employees to weaponise other events that have occurred during their tenure if they are able to do so.  This might mean using a protected characteristic, as in this case with disability, but it can often include things like claiming they were a whistle-blower and had raised concerns.   The problem for an Employment Tribunal Judge at the outset of proceedings, is that it is very difficult for them to say that these sorts of arguments have no prospects of success.  It usually cannot strike out a case. Instead, the employer finds themselves having to defend the case, even if in the long term they will be successful in doing that, with all the attendant costs.

The third point about this sort of case is that it shows the difficulties managers can face.  A manager might perceive that somebody is just being awkward or difficult, perhaps because they do not want to join in with a group activity, and they might write the person off and be less than sympathetic.  This is because the manager does not actually know what the medical position is, and unless they take steps to discover, for example, how somebody’s asthma affects them, and obtain medical advice as to whether or not the proposed activity would affect it detrimentally, and they fail to do that,  then they are at risk of claims of the kind being made by this particular employee.  If trained managers fail to understand that and fail to take appropriate action, then the employer can find themselves in the challenging position of having to try and defend these sorts of arguments. If the manager had taken the inquisitive approach, and said “let’s find out from your GP what their advice is”, the individual concerned may well have had less of a leg to stand on.

January 2020