Employment Tribunal finds that failure to carry out recommendations of occupational health report was discriminatory (Miss C Robinson v Mind Monmouthshire Ltd – ET/1600412/2018)
In the case of Miss C Robinson v Mind Monmouthshire Ltd (ET/1600412/2018) the Employment Tribunal upheld an employee’s claims for disability discrimination, constructive unfair dismissal, and victimisation after her employer failed to carry out the recommendations of an occupational health report.
The facts in Miss C Robinson v Mind Monmouthshire Ltd.
Miss C Robinson (the ‘Claimant’) was employed as an Information Advice and Assistance Worker by the Mind Monmouthshire (the ‘Respondent’) in its Abergavenny office until 7th December 2017. She had also worked prior to this for the Respondent on a fixed term contract as a Community Outreach Worker from 23rd February 2016 which formed part of continuous employment. The Claimant had a disability, Complex Post Traumatic Stress Disorder (PTSD).
In August 2016 the Claimant overheard and saw two managers and other members of staff imitating people with physical disabilities. The Claimant was upset, shocked and offended by what she heard. She first raised her concerns over this behaviour in September 2016 at team meetings but did not want to raise a formal grievance/complaint due to her previous traumatic experience of pursuing a grievance working for a former employer. She also raised a “protected disclosure” (also known as “whistleblowing”) regarding the incident. No attempt was made to resolve the issue and further similar incidents occurred involving offensive banter.
The Claimant was successful in her application for the job role of Information, Advice and Assistance Worker and started her new post on 16 January 2017. In March 2017 the Claimant started to develop symptoms of dissociation and suicidal thoughts and was referred for counselling. In April 2017 she was diagnosed with recurrent depressive disorder and on the 11th April she was prescribed antidepressant medication and diazepam.
The Claimant was referred for an Occupational Health (OH) Assessment on 27th June 2017. The diagnosis provided by the OH Assessment was that the Claimant suffered from anxiety and depression, on top of a long-standing history of complex post-traumatic stress disorder. The Claimant stated that following her reporting of the mimicking incident in the summer of 2016 she felt that she had been “sent to Coventry” (meaning ostracised) by many of her colleagues; she stated she felt even more ostracised on return to the new role. The OH physician’s recommendations included that she be allowed to work in alternative work location or roles, that she be given a mentor to support her, and also that the Respondent should carry out a risk assessment for work-related stress. The Respondent had actual knowledge of the Claimant’s disability from the OH Report. The Respondent failed to carry out these recommendations.
The Claimant referred to the mimicking incident at a capability meeting she attended in July as well as a more recent incident of unacceptable behaviour involving staff laughing raucously and swearing in the background whilst she was trying to talk someone down from jumping. She was advised to raise a grievance, which she was hesitant to do given her working environment and current state of health but submitted a grievance on 28 July 2017 as advised. The Claimant’s grievance complaint (regarding bullying and harassment she argued she was subjected to for raising her complaints) was not upheld, nor her appeal against the decision.
On 30th November 2017 a friend and colleague contacting her after being concerned that the Respondent had made enquiries with her as a third party regarding the Claimant. This affected her trust in the Respondent and she resigned from her employment by issuing a letter on 1st December 2017 after a panic attack. She then presented a claim to the tribunal on 12th March 2018 for unfair dismissal, disability discrimination and whistleblowing (public interest disclosure detriment and dismissal).
The decision of the Employment Tribunal
The Employment Tribunal held that the Claimant was disabled, and that the Respondent knew of the Claimant’s disability from the date of the production of the OH report.
The Employment Tribunal found that the Respondent’s treatment of her in failing to escalate the harassment incident in August 2016 to its disciplinary procedure left her in a situation where she was obliged to work in an environment where there was frequent offensive ‘banter’ and language. The Employment Tribunal upheld the Claimant’s complaints of constructive unfair dismissal, failure to make reasonable adjustments, and victimisation.
Failure to make reasonable adjustments
The Tribunal held that the Respondent had operated a PCP of requiring the Claimant to work alongside the staffed referred to as the ‘housing team’. The Tribunal further held that the Respondent had failed in its duty to make reasonable adjustments by failing to carry out the recommendations in the OH report (of exploring mediation and other ‘restorative solutions’) – it did “too little too late”.
The Employment Tribunal held that the Claimant’s complaint that she had witnessed members of staff mimicking a disabled person was a ‘protected disclosure’ (for the purposes of a whistleblowing claim) and a ‘protected act’ (for the purposes of a victimisation claim).
The Employment Tribunal held that there was an “inextricable relationship” between the complaint that the Claimant had made, the Respondent’s failure to deal with this complaint, and her resignation. The principal reason for the Claimant’s resignation was that she had made the protected disclosure and the Employment Tribunal therefore upheld the claims for automatic unfair dismissal and victimisation.
The Employment Tribunal held that the Respondent’s conduct led to her resignation and that the chain of events that occurred since August 2016 amounted to a breach of the implied term of mutual trust and confidence.
The Employment Tribunal held that the case should be listed for a telephone preliminary hearing so that directions for a remedies hearing could be set.
Our lawyers’ views on the case
This case is an interesting example of a catalogue of failures by an employer leading to a final incident acting as a ‘last straw’ leaving the employee little option but to resign. The decision to force the employee to go through the stress of a grievance procedure despite being aware of her disability, the failure to implement reasonable adjustments, as well as contacting third parties outside of the organisation to discuss her activities, all formed part of a chain of events that amounted to a breach of the implied term of trust and confidence she was owed as an employee.
The Employment Tribunal judgment in Miss C Robinson v Mind Monmouthshire Ltd (ET/1600412/2018) can be found here.