Tag: Progressive Disabilities

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010

Disability cases — Being able to defend them

Royal Courts of Justice, London

A recent case involving HMRC illustrated some key messages for me about defending a disability case.

In McAllister v Revenue and Customs Commissioners, the employee worked for HMRC for 7 years. He suffered from anxiety and depression and was off work for long periods of time, although some of these absences were not related to his mental health issues. In the last 24 months of employment he had been off for 245 days over 23 different occasions. At the time of dismissal, he had been off for 7 months straight. Often employers want to know “are we in safe territory to dismiss?”. With numbers like that, I’d be saying “why are you still employing?”.

The employer concluded that that level and regularity of absence impacted on productivity and staff morale (all reasonable adjustments had been exhausted). It therefore decided to dismiss. The employee would ordinarily have been entitled to a payment under the Civil Service Compensation Scheme, but the amount paid to him was reduced by 50% because they were penalising certain behaviour. That behaviour included failure to answer calls, delaying returning relevant forms, displaying disruptive behaviour and turning up late during a phased return to work.

Unsurprisingly, the employee appealed the penalty and his award was increased to 80%. He also claimed discrimination arising from disability under S.15 of the Equality Act 2010 in relation to his dismissal and the reduction of the payment.

The employer agreed the employee was disabled – this is not worth challenging unless there is real doubt over the employee qualifying as disabled. The employer is better off focussing on the lack of discrimination.

In such a case the narrative the employer is looking to tell the Tribunal is basically that “yes the person is disabled, look at all the things we did to look after him and level the playing field (reasonable adjustments). Unfortunately, the level of absence got so bad it followed this pattern – look how much time the employee was taking off and how frequently (see the figures above). We tried to manage it, and this is the advice we got from occupational health and this is what we did but it made no difference”.

Where you can evidence that for the Tribunal, it is then likely to find, as here, that the dismissal was a proportionate means of achieving the employer’s aim of ensuring that staff were capable of demonstrating satisfactory attendance and a good standard of attendance, which also comprised the aims of the maintenance of a fair, effective and transparent sickness management regime, and the efficient use of resources. The Tribunal had found that M’s absence had a very real impact on HMRC’s use of resources, in particular, on time management and staff morale.

If you think about the compensation scheme, it is a benefit – to get a disability claim off the ground you have to be able to show an act of unfavourable treatment – here the employee failed to do so as follows: the relevant treatment was the payment to the employee, the object of which was to compensate the jobholder for loss of employment that is beyond his or her control. That was made because of dismissal due to disability-related absence and disability was behind that. However, being treated as entitled to a payment– was not unfavourable treatment; if anything, it was more favourable than it would have been if the employee had been dismissed for a reason other than his disability. This shows it is key to fighting cases to really drill down into the specific wording of the law – just because someone feels aggrieved about something doesn’t mean they will get themselves through that successfully.

Anna Denton-Jones
Refreshing Law

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Age Discrimination Anna Denton-Jones Disability Discrimination Law Employment Law Employment Rights Act 1996

Managing an exit for a worker with dementia

View of the City of London at sunset

A recent case involving ASDA highlights the challenges for employers when faced with an older worker beginning to exhibit the first signs of dementia. This particular case involved an employee who was 73 years old. She had worked for 20 years in a particular store. Her family had spotted the first symptoms of dementia 2 years before she was diagnosed with mild cognitive impairment but Asda did not know of this. Colleagues had become concerned that at times the employee appeared confused, would forget things and lose keys and the employer attempted to get the employee to occupational health. The employee refused that input and also refused to allow her employer to liaise with her family. During her Tribunal case it was alleged that a manager suggested retirement.

The employee then shielded due to her age during the first lockdown. It was during this time that she was diagnosed with mild mixed dementia. At the Tribunal, there were further allegations that during this period a manager twice asked the employee whether she wanted to retire, although the manager denied this.

The employee attended a return to work meeting with her son and he raised her being pressured to retire, asking the employer to ensure his mother would not be bullied or harassed. When the employee came back to work, she was observed to take longer to work stock, got flustered and confused about how she was going to get home. She was unable to find her keys and her bus pass in her bag, which led to a deputy store manager rummaging in her bag for them, which the employee later reported to her family as having upset her. The next day, management tried to have a discussion with her about what had happened and the employee became upset and aggressive, saying she didn’t need help and if she did she would ask for it. The employer tried to get her to occupational health and the employee gave the impression that she might have resigned before walking out and going off on the sick.

A grievance was raised but not upheld and a recommendation was that the employee attend occupational health.

The employee resigned claiming age and disability discrimination. Asda offered her the opportunity to reconsider but she didn’t take it.

The Tribunal found that the employee was constructively dismissed and the conduct amounted to age and disability related harassment, direct age discrimination and discrimination arising from a disability that breached the implied term of trust and confidence. The Tribunal understood that the suggestions of retirement on multiple occasions may have been said in a well-meaning way but were age related harassment. This clearly made the employee feel that she was being pushed out and was unwanted.

The rummaging in her bag was found to have violated her dignity – this was an act of disability related harassment because it was brought about by the memory impairment.

You shouldn’t discount this case as unusual because of the age of the employee – more and more older workers are present in the workforce these days and in any event, memory impairment can be diagnosed early on so assumptions about age and dementia cannot be made.

Whilst it can be very tempting for managers to try and manage problems with an employee who is older by mentioning retirement, they need to be trained to steer clear of retirement as a subject – you wouldn’t make such a comment to a 35 year old employee, so you shouldn’t make such a comment to an older worker as it just opens up the door to them claiming this kind of discrimination. That doesn’t mean a manager can’t discuss career plans. Conversations would need to happen across the board irrespective of the employee’s age though.

Instead, if an employee is beginning to exhibit signs of dementia or other cognitive impairment, the case should be dealt with as you would for any employee of any age. Asda had clearly tried to do the right thing in terms of getting the employee to occupational health but we don’t have enough detail about the lengths that they had gone to in that regard. It may be that they had steered away from explaining to the employee that their refusal to attend occupational health placed Asda in a difficult position of having to make decisions and judgements based on the only information that they had. It might have been that the employee was struggling to perform certain tasks. It was here that the focus should have been – what are the tasks the person is struggling with? What evidence is there that they are struggling?

With regards to the incident of searching the handbag, again the employee concerned was probably trying to be helpful but you need to operate on the basis that any searching of personal belonging or lockers needs to be done with consent and in accordance with any search policy that is in place. Any search would need to be justified and it is here that Asda probably struggled. The manager could have offered to assist and if the employee refused to take it up then to respect that.

Too often we observe that in having to deal with situations in a business-like manner probably while juggling a million and one other things causes line managers forget to add the “human” aspect into communications. The best way I deal with this is to write what I want to write about something, make sure my key points are covered and then go back and add in a language of care and concern and support and wanting to help the person but remember any judge is going to be looking at all of those things, judging whether or not you have done enough. I suspect the communications in this case were devoid of that human touch.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Discrimination Law Diversity Employment Law Employment Rights Act 1996 Equality Act 2010

The widening of disability discrimination

View of the British Houses of Parliament from the river Thames, where the Employment Rights Bill is being debated

In 2010, when the Equality Act was updated, the concept of associative discrimination was enshrined within the legislation as regards direct discrimination. This followed the famous Coleman case, where the protection had been extended to the employee not because of her disability but because she was caring for her disabled child.

Since then, in 2014, a Bulgarian case in the European Court of Justice, Chez Razpredelenie extended the concept of associative discrimination to indirect discrimination.

Reminder: direct discrimination is the idea that because of somebody’s protected characteristic they have been treated in a particular way. That direct discrimination can occur where the reason for less favourable treatment is the protected characteristic of someone with whom the victim associates.

For indirect discrimination to be established under Section 19 of the Equality Act, the Employer is applying some kind of provision criterion or practice to everybody but the Claimant argues that this puts them and those with whom they share a protected characteristic at a particular disadvantage. The employer has the opportunity to defend the case showing it to be a proportionate means to achieving a legitimate aim. Traditionally, this requires the Claimant to have the protected characteristic in question and to suffer the disadvantage personally.

In the Chez case the European Court of Justice held that the protection afforded by the Race Directive which sits behind our law applied irrespective of the ethnic origin of the person who suffered the disadvantage ie: associative indirect discrimination was possible. One of its reasons for doing so was the overarching aim of eliminating all discrimination on ethnic or racial grounds. Thus they were determining that it was sufficient for a person to show that they had suffered a particular advantage alongside a disadvantaged group.

In a recent UK decision of Follows v Nationwide Building Society, Mrs Follows was employed on a Homeworker Contract for around 7 years and the primary reason that she worked from home was to care for her disabled mother. She attended the office 2-3 days a week. She had high ratings in appraisals throughout her employment, including conducting excellent supervision of her team.

Nationwide decided to reduce the number of managers from 12 to 8 and to determine that everyone would have to be office based. The reason that they gave was a greater need for supervision due to a change in the nature of the work and feedback from junior staff who were dissatisfied with the level of supervision provided to them.

Mrs Fellows was put at risk of redundancy and the employer experienced more volunteers than the required reduction in headcount. Mrs Follows didn’t volunteer and wanted to stay in employment but continued to argue that she should retain her existing working from home arrangements. Nationwide it appears approached some of the volunteers for redundancy to request that they stay on but yet dismissed Mrs Follows by reason of redundancy.

Another male colleague, who was not disabled and who was not a carer but also worked from home received the same treatment and was also dismissed.

Mrs Follows brought claims of unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.

The direct discrimination, the disability discrimination claim and the indirect age discrimination claims failed. She was successful in her claim for unfair dismissal, indirect associative discrimination on the grounds of her mother’s disability and indirect sex discrimination. Here we are going to focus on the disability arguments.

The reason why the direct discrimination claim failed was that the correct comparator was her male colleague who wasn’t disabled or a carer – because he received the same treatment as her and was also dismissed, she couldn’t get this claim off the ground. However, the claim of indirect disability discrimination by association was upheld. The Tribunal noted the background with the Chez case and the Tribunal were prepared to read our domestic legislation in the light of the Directive that sits behind it. The requirement to no longer work at home put Mrs Follows at a substantial disadvantage because of her association with her mother’s disability as her principal carer. Nationwide knew of the circumstances and of the disadvantage that Mrs Follows would suffer by its changing requirements.

The legitimate aim relied on by Nationwide was the need to provide more effective onsite supervision and the change in their lending work: given the evidence Mrs Follows’ supervisions were good, the Tribunal felt supervision had to be onsite was itself discriminatory and it couldn’t therefore amount to a legitimate aim. Even if it had been prepared to find that they were legitimate aims it felt that selecting Mrs Follows for redundancy and dismissing her was not proportionate as a means of achieving that legitimate aim, it wasn’t based on any actual evidence or rational judgment, rather it was based on Nationwide’s objective view of dissatisfaction expressed from junior staff together with managers view that the new arrangement would be better. They had also failed to take into account Mrs Follows’ view or her history of excellent supervisory work. It seems that the Tribunal were mindful that Mrs Follows had been attending the office for 3 days a week already and was prepared to continue doing so. It clearly influenced their attitude towards Nationwide being unreasonable.

This case widens the picture of our discrimination law and will be particularly relevant now that we are looking at how we work from home or in the office and hybrid working moving forward.

Whilst the case is at first instance, there is always the opportunity for the Employment Appeal Tribunal to provide more guidance on this subject and employers need to be careful when arguing somebody must return to the office/can’t do their job from home. They must have concrete evidence to rely on to justify their demands.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Compensation Constructive Dismissal Disability Diversity Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Health Conditions Protected Characteristics

We can learn from a recent disability discrimination case

Royal Courts of Justice, London

Last year, a university law lecturer at BPP University named Elizabeth Aylott was constructively unfairly dismissed and unfavourably treated because of something arising from her disability, despite the fact that other disability related claims were dismissed. She suffered from autistic spectrum disorder, anxiety and depression, which were her disabilities.

A member of the management team talked about her with a colleague and referred to her as a good worker but “mad as a box of frogs”. This comment then got back to her.

She found herself working very long hours including weekends and evenings.

A complaint resulted in a breakdown in the relationship with her employer, in particular, the employer did not allow her to see the complaint or defend herself.

Those three acts were found to be unfavourable treatment, as was the failure to refer her to occupational health.

Other concerns involved a crass and insensitive remark made about how she should have been able to handle her workload – this was inappropriate in the context of what was clearly a poor mental state.

Her employer was found to have failed to reduce her workload or provide extra support or heed any of the indications that she was not coping. Given the numbers of people who are experiencing challenges through the pandemic, you can see how easily an employer can fall into this trap and be found to be guilty of failing to do the right things.

Whenever anybody is complaining of their workload, the hours that they are working or exhibiting other signs that they are suffering from stress and not coping, which could be falling productivity, unusual disengagement or irritability and being more sensitive than normal in relation to normal day to day work related matters, an employer should be considering what they can do to support the employee.

One of the interesting things in this case, is that the employee found a job fairly quickly, so within a 3 month period of her having resigned. However, the Employment Tribunal still awarded her £71,000 worth of compensation for future losses (presumably her new job did not pay as much), £32,000 for past financial losses – so bridging the gap between the jobs, and £20,000 for injury to feelings. The Judge noted that the discriminatory conduct had been integral as to why she chose to resign and that although she had commenced working elsewhere, she remained unwell throughout the period up to the Hearing, when she was able to talk about how the treatment she had received had affected her. This shouldn’t be underestimated.

Managers need to be aware that during a Section 15 of the Equality Act claim that somebody has suffered from discrimination arising from a disability, they need to do the following:

  • Show that their disability causes “something”. That something might be fatigue or more stressed when under pressure or to lose their concentration or not perform as well under pressure.
  • If as a result of that “something” they then receive unfavourable treatment, so that might be performance management, sickness absence management or they aren’t promoted, put forward for training or allocated work, those actions can then be connected back to the disability. The employer has to then show that they are pursuing a legitimate aim and have done so in a proportionate manner when carrying out those actions.
  • For example, it may be that managing absence or attendance at work is a legitimate aim but if the employer has not obtained occupational health advice and has not made real efforts as regards reasonable adjustments, the employer is unlikely to be able to show that their actions were a proportionate means of achieving a legitimate aim.

Anna Denton-Jones
Refreshing Law