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Employment Law Case Update: Discrimination and Reasonable Adjustments
- AuthorEmployment Team
The case of Harkness v Holland and Barratt illustrates how a failure to make reasonable adjustments resulted in a successful constructive unfair dismissal claim.
Miss Harkness was employed by Holland and Barrett from 2011, where she later became manager at her store, until her resignation in 2018. Miss Harkness had been diagnosed with interstitial cystitis (IC), resulting in stress-induced pain and her needing to urinate more frequently. She had also been diagnosed with emotional unstable personality disorder, leading her to experiencing anxiety and panic attacks, also caused by stress.
A newly appointed sales manager, Mr Gold, was selected to supervise various stores, including Miss Harkness’ store, of which he attended meetings to discuss reductions of staff hours across all stores; the reductions would cause the possibility of lone working, meaning one member of staff could have to work on the shop floor for alone for portions of the working day.
Although, at the tribunal, it was heard that despite Miss Harkness having raised concerns that she would be unable to lone-work due to the prospect of her IC causing her to need to immediately urinate, Mr Gold had stated it would not be necessary for her to work during the portions of the day when lone working could occur.
Despite this, the risk for Miss Harkness lone working was still there as the only other key holder for the store worked part-time. Miss Harkness contacted Mr Gold to state that the company would need to enter consultation with staff on the hours as these were not agreed. Miss Harkness tired to contact HR after an altercation with Mr Gold however the HR representative was on holiday at the time of being contacted and did not follow up on this.
One morning of a day Miss Harkness was due to work, she had left Mr Gold a voicemail expressing she was unable to work due to her anxiety. HR sent a letter to Miss Harkness asking her to make contact with Mr Gold and if she didn’t it would be assumed that she intended to terminate her contract. Although Mr Gold later heard the voicemail, the letter was not retracted.
Miss Harkness then had a welfare call with another member of staff in which she told them that the role had become too demanding and she would prefer a head office role. She was informed to look at internal job vacancies.
Miss Harkness resigned and cited stress caused by Holland & Barratt’s behaviour.
The tribunal held that Miss Harkness’ disabilities had put her at a disadvantage and the possibility of Miss Harkness having to work alone was a breach of the implied term of mutual trust and confidence. They held that the company had failed in their duties as neither Mr Gold or HR had attempted to support her when they should have “actively sought a solution with the employee”.
This case demonstrates the necessity of employers to make reasonable adjustments and that various examples of a lack of support shown to an employee, and the failure to make reasonable adjustments can result in the possibility of discrimination claims proceeding.
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