£134k award for disability discrimination
A wholly owned subsidiary of the London Borough of Hounslow, Coalo Ltd, has been ordered to pay over £134,000 in compensation at an Employment Tribunal. The Tribunal found the employer guilty of disability discrimination against an employee who had a bad back.
The Tribunal also found the employer had failed to make reasonable adjustments, had breached their own sickness absence policy, victimised the employee, unfairly dismissed the employee and also breached the contract of employment.
An accident at work
The employee, Mr. Brosnan, was a plumber who had worked for the Council-owned facilities maintenance provider for nearly seven years. In 2019 he had an accident at work, which resulted in a back injury.
In February 2020 Mr Brosnan had a period away from work with back ache. Occupational health advice was sought and advised recommendations for adjustments that could be considered. Although it is ultimately a legal decision, rather than a medical one, the occupational health report also advised that the condition was likely to constitute a disability.
The Employment Judge, Sarah George, said that “In my view when the claimant started a period of sickness absence for low back pain in early February 2020, the respondent ought reasonably to have realised that this could well be a recurrence of the previous problem, rather than a separate isolated incident.”
Furthermore, she added “the respondent ought reasonably to have realised that this was a disabling condition”. This meant the employer should have considered and tried making adjustments to the role or environment, to try to accommodate the condition.
Occupational health advice ignored
Although occupational health advice was commissioned, the employer failed to hold a review meeting following the period of absence. This contradicted their own absence policy, which stated that review meetings would be held.
The occupational health report recommended a phased return to work over a three-week period, a workstation assessment in the employee’s car (which was used for work) and for a lumbar support to be provided for the car. The advice also suggested the employee should not lift anything over 10kg without assistance.
The employer did not conduct the workstation assessment, nor did they amend the employee’s duties, nor did they provide a lumbar support. The original accident at work also transpired to have been incorrectly recorded as sickness absence and a RIDDOR report was not made until July 2020.
The employee raised a grievance that reasonable adjustments had not been made. The grievance progressed, although did not appear to have reached a resolution over a year later. Meetings to discuss the issues were repeatedly cancelled by the employer without explanation. The Interim Head of HR was highlighted in the judgement as having failed to reply to emails.
The full extent of the claim
The employee subsequently resigned and claimed loss for:
- Compensation for unfair dismissal
- Financial loss following a discriminatory act
- Medical expenses
- Compensation for injury to feelings
- Damages for breach of contract
- Notice pay
- Unused accrued holiday pay
- ACAS uplift for unreasonable failure to follow the grievance code
- Costs associated with the claim
Disability discrimination award
The Employment Judge agreed with every core element of the Claim. A 25% increase in compensation was awarded for breaching the ACAS Code. The total compensation awarded to Mr. Bronsnan was £134,400. The Employment Judge also referenced that a personal injury claim was likely to be made, which is also likely to represent a significant cost to the employer’s insurers, or the employer, plus additional legal fees.
Although claims for disability discrimination don’t reach this level of compensation every week, they frequently succeed because the employer has failed to follow the occupational health advice and has failed to follow the ACAS Code.
It is likely to be significantly cheaper for an employer to at least try to follow occupational health advice (a lumber support could
have been purchased for £15) than face a six-figure settlement (plus reputational, productivity and legal costs) at an Employment Tribunal.
About Occupational Health Assessment Ltd – a nationwide occupational health provider