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Employment Law Case Update: Constructive Unfair Dismissal and Disability Discrimination

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Working with your employees who have a disability is crucial to ensure they feel supported in their role, improving their productivity levels and loyalty to your organisation, as well as reducing the risk of tribunal claims against you in the future.  Our Employment Law team here reviews the case of Ms Bethan Oakley v EE Limited 2021, in which the employee was told to “get a grip” by her manager while in the throes of a panic attack. 

Ms Oakley began working for her employer in 2013 as a level two tech adviser. In the summer of 2019, Mr Roberts became Ms Oakley’s line manager. She informed him that her personal life had been very stressful over the past year, and that it was causing her difficulties at work. She explained that she was seeking support and counselling through an occupational health programme.

In September 2019, Ms Oakley attended a colleague’s sickness absence meeting as moral support. The meeting went much longer than expected, leaving her unable to buy lunch at the canteen as it had closed, so Mr Roberts allowed her 30 minutes to go offsite to buy her lunch.

When Ms Oakley returned with her food she sat at her desk intending to eat while checking her callbacks and emails. Mr Roberts told her to leave her desk as eating hot food at desks was prohibited. Ms Oakley then went to the break room to finish her lunch.

Five minutes later, Mr Roberts “came and stood over her and challenged her with regard to being late”. Mr Roberts apparently became aggressive and said that they were very busy while Ms Oakley was in the break room not doing her job.” Ms Oakley became very upset and felt like she was going to cry and it was at this point that Mr Roberts told her to get a grip” and come on then, youre late.”.

Once Ms Oakley was back at her desk, Mr Roberts went to speak with her about being late and eating food at her desk. Ms Oakley asked Mr Roberts to leave her alone as she was still upset over how he had spoken to her in the break room. After he left her desk, Ms Oakley experienced a panic attack and a co-worker had to help calm her down.

After the attack, Ms Oakley stepped away from her desk. She was again approached by Mr Roberts whom she again told to go away. After giving her some time, Mr Roberts said he expected Ms Oakley to go back online in five minutes. She responded that she could not take calls, to which Mr Roberts said she would have to take sick leave.  Ms Oakley subsequently left for the day.

A couple of days later, Ms Oakley sent a letter of resignation, stating:I was humiliated in front of everyone, being harassed and bullied into experiencing the worse panic attack of my life, something that I have never had happen to me previously in work.” The company sent her an invitation to discuss some of the points she raised in her resignation. Ms Oakley responded that she may have been too hasty, but she also raised a grievance regarding Mr Roberts’ harassment of herself and other female staff with mental health issues.” She indicated she did not wish to return to work until these issues were addressed.

Though the investigator found it was inappropriate for Mr Roberts to tell Ms Oakley to get a grip”, the rest of her grievance was dismissed.

Ms Oakley then confirmed her resignation and subsequently lodged claims with the Employment Tribunal (ET) for unfair constructive dismissal, and discrimination related to disability.

Ms Oakley’s claim for unfair constructive dismissal succeeded. The ET found that Mr Roberts breached the implied term of trust and confidence by causing Ms Oakley to become “extremely distressed” and by exerting “unreasonable pressure on her to resume work” once she was distressed. 

Her claims of disability discrimination and harassment also succeeded. The ET was satisfied that the employer and Mr Roberts were aware that Ms Oakley was disabled as a result of her anxiety and depression. She had been subjected to unfavourable treatment by Mr Roberts when he expected her to resume work in circumstances where she had demonstrated, and continued to demonstrate, symptoms of distress and panic attack and an inability to work”. The ET also found it significant” that despite knowing that Ms Oakley was disabled, Mr Roberts said he would treat every employee exactly the same way.” This treatment, in addition to Mr Roberts’ remarks of get a grip” and come on, hurry up” also had the effect of violating Ms Oakley’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment”.

While some employers may feel it is important to treat all employees in exactly the same way,” it is more important to ensure all employees are treated with dignity and respect. Where an employee has a disability, employers should be mindful about how it may affect the employee’s work performance and should approach any potential issues with added sensitivity.

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.