Heather Platt successfully represented the Claimant at the London Central Employment Tribunal in her claims of discrimination arising from disability and constructive unfair dismissal. The Claimant has Autistic Spectrum Disorder (“ASD” formerly known as Asperger’s) and anxiety and depression.
The Tribunal held that:
The Claimant’s managers were aware that she had a difficult home life combined with a busy and stressful work life. There was a “long hours” culture amongst the management team, of which the Claimant was part. She frequently worked beyond contracted hours and at weekends.
In April 2018, the Claimant was moved to another department. Around this time, the Claimant’s line manager told her dotted line manager that the Claimant was “mad as a box of frogs but a good worker.” This was relayed to the Claimant.
In September 2018, a complaint was made against the Claimant by another department within the Respondent. It related to the Claimant being rude during a webinar and abrupt when resisting requests to take on further work. Although the Claimant was informed that a complaint had been made, the detail was never shared with her.
The Claimant informed her ‘dotted’ line manager that she was not coping with work pressure and was consequently drinking alcohol. Periods of sickness absence followed. The Respondent’s HRBP, Mr Shaw, told the Claimant that someone of her age and experience should be able to prioritise and manage their workload. The decision was taken by the Claimant’s manager that the Claimant should not be offered contractual sick pay in excess of 15 days because she was signed off due to “stress”.
In November 2018, the Claimant requested a referral to Occupational Health. She attended a sickness review meeting and disclosed that she was experiencing suicidal thoughts. At the meeting, she was told:
Mr Shaw proposed a settlement agreement and re-engagement as a contractor. This had not been suggested by the Claimant or her ‘dotted’ line manager.
On 25 April 2019, the Claimant resigned.
Discrimination arising from disability (section 15 Equality Act 2010)
The Claimant’s section 15 claim was successful in two respects.
Failure to refer to Occupational Health
The need for adjustments to accommodate mental health and the stigma of mental illness was “something arising” from the Claimant’s disability.
The Claimant was not referred to Occupational Health in a timely manner, despite various indications and opportunities for the Claimant’s seniors to do so. The lack of referrals amounted to unfavourable treatment.
Mr Shaw was plainly of the view that managers working in excess of contractual hours was normal and that the Claimant was experienced enough to manage her workload. The Tribunal found that the failure to obtain Occupational Health advice was because Mr Shaw, who did not give evidence, did not want to make adjustments to the Claimant’s role but was instead focused on terminating her employment. The claim was therefore made out.
The Claimant’s sickness absence was “something arising” from her disability.
The Claimant argued that she was not offered any alternatives to a settlement agreement. The Tribunal considered that by alternatives she meant a referral to Occupational Health. As noted above, the lack of a referral constituted unfavourable treatment.
The Tribunal inferred that Mr Shaw was focused on terminating the Claimant’s employment because of her sickness absence. The claim was therefore made out.
The Respondent did not argue a justification defence.
Constructive unfair dismissal
The Tribunal considered that the following matters, viewed cumulatively, amounted to a fundamental breach of trust and confidence:
The Claimant resigned in response to the foregoing matters. She did not affirm the contract as she was signed off sick for a significant period and was in the grievance process for over four months.
At the end of the Tribunal’s judgment, directions were given for a remedy hearing. The Respondent has appealed to the EAT but a date has not yet been set.
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