REWARD
from post-traumatic stress disorder, severe anxiety and panic attacks, and was signed off work. Her employer was aware that this side hustle was beneficial for her health and no concerns were raised. However, while she was off sick, the employee faced continued stress because of regular check-up calls from her manager, who unreasonably questioned her medication and insisted she ask her doctor to review it. In one call, the manager told her to be mindful of the impact posting pictures of the cakes she baked on Facebook would have on her colleagues, especially since she was ‘supposed to be sick.’ At the time of the call, the manager knew the claimant was increasingly anxious about action being taken against her for her ongoing absence, and that she ‘catastrophised’ matters. There was also an arrangement that there would be no contact for at least one month, and an agreement that the manager would only call after receiving a text message to confirm this was appropriate. As a result, the call caused significant distress and triggered the employee to have a panic attack which, ultimately, led to her resigning. She proceeded to claim constructive dismissal, saying her employer’s lack of support and unreasonable behaviour meant it was no longer tenable for her to continue to be employed by them. The ET concluded that it was unreasonable for the manager to question her medical treatment, as there was no proper cause for doing so. It highlighted that this caused a serious breach of their duty of mutual trust and confidence. The ET also found that the call relating to her Facebook cake posts further damaged the employment relationship, especially since the employee was off sick with severe anxiety and the posting of her pictures wasn’t a conduct issue, nor a matter that had to be discussed urgently. The employer argued the claim shouldn’t be successful since there was a delay between the incidents and her resignation: the call regarding her medication was on 30 November, and the Facebook post was discussed on 17 December, but the claimant didn’t resign until 19 January the following year. A delay in resignation can be seen as an acceptance of a breach, which can cause a claim to fail. However, this line of defence was rejected by the ET who instead upheld her
When this wasn’t allowed, he raised a claim for disability discrimination, on the basis that the employer failed in their duty to make reasonable adjustments. The EAT found that, although slotting him into a new role would have removed the disadvantage to him, it would have impacted the other employees involved in the selection process.
claim. This was decided based on several key facts: ● the case occurred over the festive period ● the manager was absent until 17 January ● the claimant was in a high state of anxiety and wanted to discuss the issue with their trade union and consultant before acting, both of which took time. Considering the claimant had 21 years’ service, it was deemed reasonable there was some delay in making her decision, and that her behaviour between the phone calls and her resignation didn’t indicate she’d accepted the breach. Reasonable adjustments not intended to give disabled employees an advantage An EAT had to consider whether an adjustment in a redundancy exercise, which had the effect of giving an advantage to a disabled employees over their colleagues, was reasonable. In the case of Hilaire v Luton Borough Council, as part of redundancy consultation, the employer asked at-risk employees to apply for available roles within their new structure and confirmed an interview process would then take place. An employee missed the application deadline due to sickness absence but was allowed an extension and was offered further support. Following his application, and as per the agreed process, the employee was invited to an interview. However, he submitted a new fit note, extending his sickness absence, and indicated that he wouldn’t be attending the interview. The employer tried several times to reschedule the interview but had no response so eventually had to set a deadline for it, since 13 other employees were involved in the process and were awaiting an outcome. The employee refused to attend any interview and confirmed that, even if he hadn’t been off sick, he wouldn’t have engaged with the process, as he believed the human resource team were conspiring to dismiss him because of his sickness absence. He further argued that his disability (he had depression so struggled with memory, concentration and social interaction) would put him at a substantial disadvantage and contributed to his inability to attend or take part in an interview. Instead, he requested that he should automatically be given a new position in the new structure, saying this ‘slotting in’ would be a reasonable adjustment.
It highlighted that a reasonable adjustment isn’t designed to give
employees an advantage beyond removing the disadvantage they face because of their disability which is caused by the relevant provision, criterion or practice (PCP), saying “making an adjustment is not a vehicle for giving any advantage over and above removing the particular disadvantage.” As a result, the EAT concluded it wasn’t reasonable or necessary for the employer to do so. This case provides a useful overview of the limit employers must go to when exploring their requirement to make reasonable adjustments for disabled members of staff All employers will likely be familiar with implementing reasonable adjustments for employees, but confusion often arises over the reasonableness of them. This case provides a useful overview of the limit employers must go to when exploring their requirement to make reasonable adjustments for disabled members of staff. An effective reasonable adjustment in this case may have instead been to allow the employee to provide a written submission to the interview questions. However, as highlighted by the EAT, a large contributor to the dismissal of the claim was due to the fact the employee wouldn’t have attended the interview even if he didn’t have medical limitations. As such, it wasn’t necessary to exhaust all other potential adjustments to support the employee through the interview process. n
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| Professional in Payroll, Pensions and Reward |
Issue 87 | February 2023
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