The claimant was employed by the respondent as a prison officer from November 2008 until October 2020 when she was medically retired on the grounds of ill-health. The claimant had an adverse mental condition arising from stress. This was exacerbated by the fact that a close family member was the victim of a serious criminal offence in 2017. The claimant gave evidence that after that offence had taken place against her family member that she had an agreement with her line manager that she would not be assigned to duties where perpetrators of similar offences were detained. The claimant also gave evidence that she would have become upset in work but that she could do this in private such as during her driving duties where she could ‘have a cry and then compose herself’.

In February 2019 the claimant was contacted in relation to moving her (as well as others) to other duties. The reason for this was the greater need for male officers to conduct searches of male prisoners returning from temporary release schemes. The Governor became aware that the claimant had been crying on duty and the claimant opened up about the court case which had concluded in a conviction. The claimant outlined that she was seeking alternative employment and the Governor assured the claimant that the prisoner would not be sent to the same prison as the claimant. The Governor also sought the possibility of counselling for the claimant. The claimant sought to stay in the same role yet this request was refused by the Governor. Subsequently, the Governor encountered the claimant on a visit to the prison. The claimant was described as being very emotional which was, according to the Governor, due to the court case and the prospect of being moved. The claimant stated it was due to a rostering error which had placed her in a facility which she had agreed with her line manager she would not be sent to.

The claimant was absent from work from 13th March 2019. The claimant never returned to work following a series of counselling sessions and occupational health appointments. It culminated in a successful appeal from the claimant that she was ineligible for Early Retirement on Medical Grounds. The submission of the claimant was that towards the end it had become clear in the ‘Consideration of Dismissal Interview’ process that a decision had been made that she was going to be dismissed and thus she applied for the Early Retirement. The claimant brought a claim for constructive dismissal as well as disability discrimination.

On the point of disability discrimination, the Tribunal found that the claimant had failed to establish that the respondent knew or ought to have known that she was disabled. The claimant suggested that it started from 2017 and the serious assault on a family member. Yet there had never been any sickness leave taken nor had there been any issue with the claimant’s work. Therefore, it was not reasonable for the respondent to know that the claimant was disabled. Additionally, whilst the claimant had been upset in work there was nothing to suggest that it was more than personal issues. In terms of the constructive dismissal claim, the Tribunal found that the argument the claimant had no option to resign did not stand up to scrutiny. Indeed, the Consideration of Dismissal Interview process had been repeatedly deferred to allow the claimant to complete her counselling with the view that she could return to work. This did not demonstrate that a decision to dismiss had already been decided upon. Finally, the decision of the claimant to appeal against the initial refusal of medical retirement demonstrated that it was an active decision to resign rather than arising out of a breach of contract.

Practical Lessons

This case demonstrates the importance in ensuring that the respondent knows of a disability. It was agreed that the claimant was disabled at the material time yet the disability was never made known to the respondent and the claimant had to make arguments based upon her behaviour within the workplace. This means that there were no reasonable adjustments to be made at that time considering that the respondent was unaware of any disability. The Tribunal commended the respondent’s conduct as being in line with its policies and showing flexibility and forbearance considering the claimant’s situation. The creation of such policies and adhering to them is crucial in avoiding a finding against you at a Tribunal.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/