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investigated fully and that managers are applying and adhering to internal policies and procedures.
(CQC) inspection, it was discovered bullying was rife within the Trust, causing it to be placed into special measures. At this point, the management and control of the organisation was handed to another Trust. The new managing director questioned whether the claimant was fit and proper to be in a leadership position on equality issues, given the allegations previously raised against her and under the backdrop of the CQC’s findings. As a result, a further disciplinary hearing was arranged by the new Trust managers about the original allegations. The employee continued to deny any wrongdoing, as she had done previously. But the manager concluded that her conduct had fatally undermined her ability to perform that leadership role, so she was dismissed. Subsequently, she raised a claim for unfair dismissal, arguing the employer shouldn’t have re-opened disciplinary proceedings. The ET rejected her claim, saying the process followed by the Trust was fair and reasonable, and the decision to dismiss under the circumstances fell within the range of reasonable responses. On appeal to the EAT, the same outcome was reached. The EAT noted that it’s unusual to re-open disciplinary proceedings but confirmed that the tribunal had made no error of law and had given clear reasons for its decision on fairness. This included: l the findings of the CQC report l the claimant’s continuing unwillingness to accept any responsibility l the new Trust manager’s conclusion that it wasn’t objectively credible or acceptable for the claimant to lead on the important issue of race equality, considering her conduct. This case offers an interesting perspective into reconsidering the outcome of disciplinary proceedings and reminds employers of the importance of looking at the broader picture when deciding on disciplinary outcomes. It doesn’t, however, mean employers are free to re-visit any disciplinary proceedings and increase the severity of the outcome if others consider it too lenient. The facts of this case were unusual, and the outcome had a great deal to do with the nature of the claimant’s work and that of the allegations against her. As such, this is a scenario unlikely to arise for most organisations. n
typically stress is not seen as a disability. The respondent argued that the stress and anxiety was due to an ‘adverse life event’, rather than a mental impairment or disability. However, it was found that the actions of the respondent had a ‘profound’ effect on the claimant, which caused her to suffer from anxiety, stress and a sense of isolation which left her unable to return to work. Breaking down the definition of disability, the ET held that her illness did have a substantial effect on her day-to-day life, by limiting her ability to participate in social interactions and work as she used to, and this was a long-term issue. Therefore, it met the definition of disability under the Equality Act 2010, so she was allowed to proceed with her claim for disability discrimination. This case is a reminder that the definition of disability should be applied regardless of what led to the illness. What is key, is the impact the symptoms have on the employee, and what they’re unable to do as a result. It doesn’t mean that all stress is a disability: these tests are applied strictly by the courts, and it’s clear from the case that how she was feeling had a huge impact on both her work and personal life. However, this case is at a very early stage, and the judgment is not a decision that must be followed by other courts, but an indication of how stress might be treated by the courts. Re-opening closed disciplinary proceedings to dismiss The Employment Appeal Tribunal (EAT) considered whether it was unfair for an employer to re-open an already concluded disciplinary process and issue a new outcome of dismissal, when the original decision was to provide a final written warning. In the case of Lyfar-Cisse v Western Sussex University Hospitals NHS Foundation Trust, the employee was the associate director of transformation and responsible for improving race equality. She was also the chair of the Trust’s Black and Minority Ethnic (BME) Network. The employee was accused of bullying and victimising a colleague, and of racially harassing and discriminating against another. This instigated a disciplinary process which ultimately led to her being issued with a final written warning. Following a Care Quality Commission
Is stress a disability? In the case of Jung v Amnesty
International, the employee worked as a senior campaigner for Amnesty International for 17 years, before she was dismissed due to a breakdown in the relationship between her and her employer. On 7 May 2021, Amnesty announced they were giving a Russian opposition leader the status of ‘prisoner of conscience’ (PoC) despite previously taking this away for alleged hate speech, neo-Nazism and far right activities. The employee, as a Muslim, was profoundly affected by this, arguing that the individual had advocated for racist violence against Muslims so shouldn’t be given PoC status. However, the employee was alone in this challenge. The rest of her team, none of whom were Muslim, either agreed with their employer’s actions or refused to comment. She decided to blow the whistle on what she believed to be discriminatory behaviour, complaining that her employer’s actions were insulting, offensive and discriminatory, and a breach of the Equality Act 2010. However, Amnesty refused to investigate her grievance, causing her to feel isolated, stressed and anxious. Her GP signed her off sick with ‘stress and anxiety work-related stress’. Despite previously being very active and social, once she began suffering from stress and anxiety, she reported: l forgetfulness l tiredness l ill-temper, which was damaging to her relationships with her friends, husband and children, furthering her feelings of isolation. She indicated that, despite the financial implications on her family because of lost wages after exhausting sick pay entitlements, she didn’t feel she was able to pursue alternative employment due to the ill health caused by the situation. Eventually, she was dismissed, after which she brought a variety of claims, including disability discrimination. A preliminary hearing was held to assess whether or not she was disabled under the definition in the Equality Act 2010. The ET applied the legal definition of ‘disabled’, and concluded that her illness would fall within it, in an unusual step, as
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| Professional in Payroll, Pensions and Reward |
Issue 89 | April 2023
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