£104k award for disability discrimination
An NHS group has been ordered to pay out over £104,000 for disability
discrimination. The award was made after an occupational health assessment was
made under false pretences, with the compensation increased because the
employer also failed to follow the ACAS code.
Tower Hamlets GP Care Group, a group of the London borough’s
doctors, was ordered to pay the compensation in a remedy
judgement decision published at the end of September. A previous employment
tribunal had found that the employee, Miss R Sahin, had been unfairly treated.
Miss Sahin suffered from epilepsy, a fact known to her
employer since completion of a ‘pre-employment’ medical questionnaire. Miss
Sahin was only employed for four months, however, during that time her
relationship with her manager broke down and she resigned from her role.
In an earlier
ruling an employment tribunal was highly critical of the managers’
behaviour, finding that the manager seized on Mis Sahin’s epilepsy to deflect
criticism of her management. The tribunal even went as far as to say “We have
found that in effect the manager weaponised, or used the Claimant’s disability,
as an excuse to make life difficult for the Claimant”.
“We find that the Respondent would not have treated someone
who did not have the condition of epilepsy in the same way and that this was an
act of direct disability discrimination.”
The original tribunal found the line manager made
assumptions about the employee’s ability to work and that they were pressured
to widely disclose the disability at a meeting with HR two weeks later.
The tribunal were highly critical of the HR team, who
falsely represented her health conditions, including in a referral to
occupational health. The actions were found to be illustrative of the agenda
being pursued by management to declare Miss Sahin as unfit to work.
The panel also decided that changes to the employee’s
schedule, which made it harder for her to manage her condition, were partly
motivated as a retaliatory step after she raised a grievance about the changes.
Referral to occupational health
An occupational health assessment had been held based on
information that was fabricated, inaccurate or misleading. Miss Sahin told the
occupational health doctor that the basis of the referral was a lie. A report
was provided, however, the HR team appeared to discount the report and sought
another referral to occupational health.
Pushing for another referral to occupational health then
formed the basis of a grievance from the employee.
The subsequent occupational health assessment made some stark
comments. The doctor stated “As you know she has multiple medical conditions
but it seems to me if she had been managed appropriately these would not have
caused significant problems… the work-related stress is NOT caused by the
patients’ condition but her line management…”.
The doctor went further saying “I would strongly recommend
an exit interview with Rafaelia, yourself, HR and ideally a representative for
her. You need to be aware that the line management issue and the associated
grievance clearly led to deterioration in Rafaelia’s physical and mental
health. Her physical health was affected with exacerbations of her postural
tachycardia, Connective tissue disease and epilepsy.”
The employee resigned
The tribunal decided that Miss Sahin was entitled to resign only
months into the job because of failings in how the organisation dealt with her
grievance complaints. This included having an HR representative on the panel
whom the grievance complaint directly concerned.
The resignation was due to disability discrimination because
“part of the reason for it was the conduct of the manager that we have found to
be unlawful discrimination”.
Chris Banks, Joint Chief Executive at Tower Hamlets GP Care
Group, declined to comment on the case although said “We aim to be a good
employer and we have reviewed our training to enhance staff awareness of
disabilities, and our procedures to ensure we respect and make reasonable
adjustments for people with disabilities.”
Key items for managers
The case highlights the need to ensure requests for
occupational health advice are based upon transparent and factual information.
Referring an employee to occupational health on unclear or false pretences is
likely to cause serious problems for the employer.
Employees are entitled to see whatever is included on the
referral form used to commission the advice. Pushing for a second referral
because the advice provided (which is always independent) does not suit the
employer is also a high-risk strategy.
Similarly, following the ACAS
Code is a very straight forward process for employers to follow. Failing to
follow the process can lead to uplifts in awards, should a Tribunal decide
against an employer.
Epilepsy can be a dangerous and life-threatening condition,
however, Miss Sahin’s epilepsy was well controlled and there was no reason she
could not work, as specified in the ‘pre-employment’ certification. There is
information about how to help manage epilepsy at work in our free
The award for direct disability discrimination including
financial losses, injury to feelings and personal injury, plus interest and a
15% uplift for failing to adhere to the ACAS Code, brought the total award to