REWARD
Dismissals and discrimination
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
Dismissal for long-term absence was fair The case of Maxwell v HBOS serves as a useful reminder of the importance of implementing and adhering to robust internal policies and procedures as, ultimately, this led to the successful defence of an unfair dismissal claim. Following a restructure process, a long- service employee (started May 1998) was given the option of volunteering for redundancy, which he did. However, it was made clear to him, and all others, there was no guarantee a voluntary redundancy (VR) request would be accepted and, eventually, the employer decided not to proceed with VR for this individual. Instead, in June 2018, he was offered an alternative role which he reluctantly accepted but didn’t formally challenge. In October 2018, he argued the new role was unsuitable, so asked for his VR application to be reconsidered. This was rejected. The business later initiated a further round of VRs, but the employee wasn’t eligible to apply as the grade of his new role was too low. In April 2021, he submitted a grievance alleging that: l he’d been unfairly treated during restructures l he was forced to move to a lower grade role l he was denied the opportunity to apply for VR. The employee argued he’d been let down, unappreciated, pushed around and not taken seriously, and stated the combined issues had led him to suffer from stress and mental health issues. When asked what his preferred grievance outcome would be, he made it clear he wished to be redundant. The grievance and subsequent appeal weren’t upheld, and the employee was signed off sick. Early on in his sickness absence, the manager: l agreed to weekly check-in meetings
l referred him to various support networks, such as EAP, Bupa and Bank Workers Charity l created a wellness plan to record discussions and actions l arranged an occupational health (OH) assessment. These steps were all in line with the internal ‘health, well-being and attendance policy.’ The OH report indicated that the employee felt the working relationship had irretrievably broken down, and that returning to work would be ‘extremely difficult’. OH recommended the employee complete two or three counselling sessions before discussing work issues, and that a stress risk assessment be conducted. The employer confirmed they were happy to implement the OH recommendations and undertook several further meetings under the ‘wellness plan’, making attempts to identify a mental health advocate for the employee. Despite this, by May 2022, all attempts to encourage the employee to return to work had failed and the final review meeting stage was reached. The employee was advised that a potential outcome of this meeting was dismissal. He was clear he could see no way of returning to work, as he felt he had been badly treated and didn’t trust management. His union representative suggested considering something other than dismissal, such as redundancy or ill- health retirement, but there was no need for redundancies and no medical evidence to suggest he’d never work again, so both were rejected. Ultimately, the employee was dismissed under medical capability, on the basis the chair of the meeting had no confidence that his attendance had improved. An appeal was raised but not upheld, leading to a claim for unfair dismissal being raised. The employment tribunal (ET) rejected the claim and highlighted that the key to
this decision was the employer’s efforts to accommodate his concerns and bring him back to work. Specifically: l it consulted him throughout the absence l implemented counselling l undertook a stress risk assessment l offered adjustments recommended by OH, including reduced hours, discretionary breaks and a phased return. The process followed in this case is what led to the employer’s success. Extent of discrimination arising from disability In the case of McQueen v General Optical Council, the employee had symptoms of Asperger’s Syndrome, hearing loss and neurodiversity conditions. Throughout his employment, he’d been examined on separate occasions by an OH practitioner, a psychologist and a psychiatrist. These medical professionals concluded that, in stressful situations, the employee tended to raise his voice and display aggressive body language. The tribunal had to decide whether action against such behaviours amounted to discrimination arising from a disability. The employee was involved in two difficult interactions with a senior colleague, during which he was said to be rude, disrespectful and displayed aggressive body language and gestures, leaving his colleague in tears. These incidents led to a further OH referral and changes to his working practices. However, similar incidents of inappropriate conduct continued, leading to disciplinary action and a formal warning. Following this, he raised a grievance and submitted an ET claim, including in this that he’d been subject to unfavourable treatment because of something arising in consequence of disability under Section 15 of the Equality Act 2010. During the case hearing, the respondent didn’t dispute that he was disabled under
| Professional in Payroll, Pensions and Reward | May 2023 | Issue 90 38
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