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Employment Law Case Update: Age and Disability Discrimination

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All employers should be aware of the nine protected characteristics in Employment Law, which includes age and disability.  Our Employment Law team here review the case of Walsh v Rose Medical Limited, which demonstrates how an employer should not act when faced with accusations of mocking from colleagues, return to work interviews, investigations and dismissals. 

Mrs Sue Walsh was employed as a counter assistant at Rose Medical’s pharmacy from April 2017 until her dismissal in September 2018.

Soon after starting, she experienced mocking and harassment by some of her younger co-workers related to her age and difficulty hearing. They would repeatedly shout her name from the dispensary when she was at the counter. The shouting would get louder and more hostile until she heard them or was alerted by a customer. She was also mocked when she had trouble remembering something and had to ask a co-worker. 

Mrs Walsh was embarrassed by this treatment and went to see her GP about her hearing. She was subsequently diagnosed with mixed hearing loss and given a hearing aid. The hearing aid helped her to hear but the mocking from her colleagues continued.

In February 2018 Mrs Walsh complained to her manager, Mr Nolan, about her co-workers’ behaviour. He did not take the complaint seriously and told the Employment Tribunal he regarded the complaint as a “moan and a groan.” In May 2018 Mrs Walsh made another complaint, this time to Mr Molyneux, co-director of Rose Medical. He told her to “let it go over her head” and “just smile and get on with the job.” Mr Molyneux did not investigate or consult the HR consultant. The ET said it seemed as though Mr Molyneux believed he had “a lower level of care and responsibility towards her than someone with two years’ service”.

After her meeting with Mr Molyneux, Mr Nolan became much more hostile towards Mrs Walsh. He often ignored her or was overly critical of her work. In September 2018 Mr Nolan asked Mrs Walsh to complete a task known as “dooping,” or disposing of old prescription medicines. Usually done by the dispensers, this involved stooping down into bin bags which was difficult for Mrs Walsh as she suffered from osteoarthritis. Mr Nolan was aware of her condition. After completing the task, Mrs Walsh was in a lot of pain. She suffered a dizzy spell and was caught by a colleague. Mr Nolan was the pharmacy first aider and though he was  aware of Mrs Walsh’s dizzy spell, he did not offer assistance.

The next day, 13 September, Mrs Walsh reported in sick citing a flare up of her osteoarthritis caused by doing the doop bins. She called in sick again on 14 September, prompting Mr Nolan to call Mr Molyneux. Mr Nolan told him about Mrs Walsh’s dizzy spell and her absences. Mr Molyneux referred to these as the “last straw” and said she would need to be dismissed.

The next week, in a return to work interview, Mr Molyneaux dismissed Mrs Walsh. She left immediately and subsequently brought a claim under sections 15 and 27 the Equality Act 2010 alleging discrimination based on disability and victimisation.

The ET found the claim of disability discrimination well founded. Mrs Walsh was disabled due to her osteoarthritis and Mr Molyneux was aware of this. He made the decision to dismiss her right after learning she was off sick due to a flare up of her osteroarthritis caused by the “dooping”. Assessed objectively, the ET concluded that Mrs Walsh’s sickness absence on the 13-14 September, which arose due to her disability, was the reason for her dismissal.

The ET rejected Rose Medical’s submission that Mrs Walsh had been dismissed for performance related reasons due to the fact that no performance issues had been raised with Mrs Walsh prior to her dismissal including during her probationary period.

The ET awarded Mrs Walsh £15,649. Of this £13,000 was awarded for injury to feelings for acts of age and disability discrimination.

This case reminds employers of their responsibility to protect employees from discrimination regardless of length of service and to take complaints of discrimination and harassment seriously.  This employer made the mistake of focusing on the fact that the employee had not completed two years service and was not therefore protected from unfair dismissal but failed to realise that she would be protected from discrimination from day one of her employment. 

When faced with a complaint of harassment or bullying, employers should investigate, take action against perpetrators, and support the complainant, regardless of their length of service.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.