Disabled Employee Awarded nearly £400,000 in a Disability Discrimination Case
It was noted by the courts that Mr. Jones had worked in excess of 60 hours per week and had not utilised his holiday entitlement prior to his stroke, and that following it the company dismissed him on the grounds that his GP advised that he could only return to work if he was not exposed to stress, and they felt unable to accommodate him within the workforce given that no role within the company would be without stress. The tribunal found that the company failed to make reasonable adjustments.
The tribunal also further noted that the G.P at no point had indicated that Mr. Jones would not be able to make a full recovery from the stroke. They examined the case further and delved into the sickness absence records of the company and established that, historically, in the two year period prior to dismissing Mr. Jones, 204 other employees had more than 6 months’ absence and 64 employees more than 12 months’ absence. It transpired that Mr. Jones made a full recovery within 11 months of his stroke, and therefore would have been in a position to have resumed his substantive duties and hours.
The case is notable in that it raises a number of issues.
Firstly, the company did not seek a specialist occupational health opinion prior to dismissal acting solely upon the advice issued by the GP. in terms of recommended adjustments to enable a return to work. Whilst Healthwork are not in disfavour with GPs issuing advice to employers in relation to return to work, it could be speculated that non-specialists have limited knowledge in terms of what level of adjustments may potentially be construed as reasonable or achievable by employers.
GPs may not also be able to provide companies with reliable advice in relation to whether or not an employee’s medical condition is likely to be construed as a disability within the courts according to the accepted medico-legal definitions of disability. Clearly, eliminating stress entirely from any job is unrealistic and the advice really should be to minimise risk as far as reasonably practicable.
This could have been facilitated, for example, through the conduction of a stress risk assessment. It is advisable for management to review their existing organisational stress management policies in light of this to ensure that systems are in place to address stress within the workplace once identified as an issue. Stress is a leading cause of sickness absence within all employment sectors in the UK and remains one of the key areas where the HSE are keen to ensure that employers adopt a robust attitude and policy to address stress. The tribunal would have perhaps expected the employers to have adopted such an approach.
Secondly, the employee clearly exceeded the Working Time Regulations agreed hours of contractual work. The company should perhaps have had systems in place to identify workers who were working in breach of these regulations.
Thirdly, the company was found to have acted inconsistently in handling this sickness absence case as, historically, they had tolerated greater durations of sickness absence prior to allowing employees to resume work. This was compounded further by the observation that the employers did not attempt to obtain a medical opinion to quantify the likely duration of the employee’s absence or need for work adjustments prior to moving towards dismissing the employee. Employers need to ensure a consistent approach in dealing with sickness absence cases so that they do not place themselves in danger of unfair discrimination claims.
Healthwork’s team of occupational physicians and nurses are experienced in providing advice in cases of disabled employees and stress management within the workplace.
Healthwork would be pleased to advise you in this regard and to answer any questions arising from this case.