The claimant was employed as the communications officer for the respondent from March 2013 in an office-based role.  From 2015 she was line managed by the Director of Fundraising and Communications, but that director had resigned while the Claimant was off during a period of maternity leave followed by sick leave in 2017 and 2018.

The claimant was diagnosed with ulcerative colitis on 15th October 2017 and it was agreed that she was disabled in line with the definition under the Disability Discrimination Act 1995 from that point.  On 2nd August 2018 the claimant met with the Head of Corporate Services about her return to work.   The claimant requested that her working pattern be varied so that she could manage her condition and stress associated with the role.  That variation (working four days a week including one day from home per week) was ‘apparently’ granted.  There was no note-taker at that meeting nor no written confirmation of the variation.

The Tribunal made reference to the failings of the respondent stating:

‘It is a recurring feature of this case that ordinary common sense procedures, which are followed by other employers in all areas of employment, and which make matters simpler and clearer for all parties, were not followed by the employer.  All attempts by this tribunal to elicit a rational explanation for these failures were unsuccessful.’

The claimant continued to seek clarity and confusion reigned the whole way to the Tribunal. This meant there were mentions of a ‘trial’ for six months to ‘phasing back to work’.  There was very little heed given to the disability of the claimant.

At this point a new CEO came in and sought to redraft job descriptions. An agreement was in place with the claimant and her line manager.  However, the CEO changed it substantially to which the claimant felt her role had been downgraded.  Additionally, she wanted the variation to be made permanent.  This was refused.  The Respondent suggested that the Claimant apply under the Flexible working policy for a variation of contract.

The claimant subsequently went on sick leave and occupational health outlined that her condition could be triggered by stress and that there needed to be greater clarity. Despite this the respondent continued with its push for a ‘phased return’ with the claimant being back to full-time work within 3 weeks.  It was at this point the claimant resigned.  She brought claims for disability discrimination and unfair constructive dismissal.

The Tribunal upheld these claims.  For disability discrimination it was found that there was a failure to make reasonable adjustments when it came to the variation of work.  This also went into direct discrimination on the basis of disability on the basis that there was a failure to treat the claimant’s condition seriously. Lastly, the constructive dismissal claim was upheld on the basis that there was a fundamental breach of contract by the failure to put in place reasonable adjustments and the disability discrimination faced.  The Tribunal awarded £7,000 for injury to feelings as well as £2420.30 for a basic award and £500 for loss of statutory rights.

Practical Lessons

It should be a very simple objective of an employer to avoid the type of criticism that was faced by the respondent in this case.  The quote above about failing to adhere to common sense procedures should put employers on notice to ensure that proper procedures are in place for all interactions with employees.  This should mean there are notes taken and certainty provided for employees.  The lack of certainty at the beginning led to this case snow-balling with the claimant’s condition not being properly considered.  This led to the claim being brought and upheld against the respondent.

These case reviews were written by Jason Elliott BL.  NI Tribunal decisions are available on the OITFET website: http://www.employmenttribunalsni.co.uk/