£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 management guide.
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 £104,740.53.