Disability discrimination found when absence management process used and reason for referral to occupational health despite the disability of the claimant and how he had suffered an assault at work.

The claimant worked with the trust from August 2008 as a residential social care worker in a Children’s Home.   From 2007 the claimant outlined that he endured difficult family relationships and led to severe depression and anxiety.

In April 2017 the claimant was subjected to serious threats from some residents including a physical threat as well as a threat to burn his home.   The claimant advised that he would like to return home due to the threats.  This led to the claimant being told that if he did not finish his shift he may not receive his pay.  This led to the claimant contacting his Union about what he regarded as a poor response.   The Services Manager stated that the claimant walked off the shift, was not assaulted and questioned if he was a good fit for the job.   The claimant went on a period of sick leave.   The claimant was not contacted as required under the Zero Tolerance Policy and instead was treated under the Attendance Protocol.  The claimant was referred to occupational health but in the referral it was signed that it had been discussed with the claimant yet it had not.   It was not signed by the claimant despite there being space to do so.  The claimant felt that the referral was an attack on him personally and professionally.  Despite this and a grievance the attendance policy escalated with it going to a further stage.

The grievance was not upheld.  It concluded that the Trust had met the required standard of care to the claimant and his family.  There was no mention of disability discrimination within the grievance with HR stating that it was only to consider health and safety and health and well-being.  This was brought to stage two which was partially upheld and there was a finding of direct disability discrimination considering the failure to make the claimant aware of the referral to occupational health.  Additionally, by reason of the claimant’s health and disability he should not have been escalated up the Managing Attendance Policy.   However, the suggestion that he had been targeted by management was not upheld. 
Issues continued with the claimant’s employment including a change to contract and this led to a number of other grievances being issued by the claimant.  This led to some comments from management that he was ‘looking for blood’ and that he was regarded as being ‘delusional’ by other members of management.  This culminated in the case for disability discrimination, victimisation and harassment.

Based upon the facts and the way in which the claimant was treated by management through a series of actions the Tribunal found unanimously that he was subject to disability discrimination, harassment and victimisation under the 1995 Act.   The inappropriate comments which related to the claimant’s ability to carry out his work were found to be unwanted conduct and created a degrading and humiliating environment.   There was also conflation in OH referrals between issues relating to staffing and organising rotas and the fact that the claimant was taking time off.  The Tribunal noted that the staffing matters was not a concern for the referral to OH and that such comments could have the effect of creating a degrading and hostile atmosphere for the claimant due to his characteristics.

The effect of the discrimination led to an award of £20,000 for injury to feelings and £3,000 aggravated damages.

The use of attendance management when it comes to an employee who is recognised as disabled and the attendance issues are caused by the disability has once again arisen.  As has been seen in various cases it is best to have those absences discounted.

This was not the only issue but also the comments relating to the claimant and how it related to his mental health were such that it did lead to harassment within the workplace.

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