Disabled administrator advised to 'chart a different path' after requesting time off to attend hospital was victim of discrimination, tribunal rules

Judge finds there was no ‘effort’ from the employer to put measures in place to enable the employee to work, despite being aware of the condition

Credit: Vlatko Gasparic, VICTOR/DigitalVision Vectors/Getty Images

An administrator and manager at an accountancy firm has won claims of direct discrimination and discrimination arising out of disability, when her manager suggested she “chart a different path” after she disclosed a condition, a tribunal has ruled. 

It found that Ozgul Coban – who has Crohn’s disease – was faced with “the prospect of an unidentified change” to her working patterns when the director of Manes Partners (MP), Alper Ozceylan, suggested they “chart a different path” when she requested time off for hospital treatment. 

The tribunal also ruled there was “no real attempt” to discuss the impact Crohn’s had on Coban, nor any “effort” to put measures in place to enable her to continue to work. 

Background

The Cambridge tribunal heard that Coban was employed by MP in an administration and management role on 1 September 2021, until her employment came to an end in November. 

It outlined that Coban’s Crohn’s disease, amounted to a disability as it has a “substantial and adverse” effect on her daily life, and she received regular treatments. It also found that MP and her manager Ozceylan were aware of her condition when she was hired.

The tribunal was given copies of text messages – which were translated from Turkish – between Coban and Ozceylan on 8 November 2021, during which Coban asked for the day off to attend hospital for her treatment. 

Ozceylan told her to “get well soon” and added that he feels “sorry for [her] illness”, but he has a “business to run”. He said since her employment commenced eight weeks prior, she had taken eight sick days. Ozceylan acknowledged this was out of Coban’s control, but added that he must “rely on someone” to be in the office. 

He continued: “Of course, I show endless understanding, but our work should not be interrupted. I put a lot of effort into this work, my friends are also making a lot of effort. If we're going to continue to be ‘on-and-off’, maybe let's talk about charting a different path.” 

Coban replied: “In short, I think you want me to leave the job. As you wish.” 

Ozceylan argued that if he wanted her to quit he would have “said it directly” and said he meant that he could perhaps consider making Coban a part-time worker, and ended with “but if you say so, well, we can part ways at the end of this month”. 

The tribunal found that MP had no sickness absence policy or procedures to deal with attendance management, and that Coban was not provided with written terms and conditions of her employment. 

Judge’s comments 

Employment judge Freshwater ruled that Ozceylan did not dismiss Coban, but he “made no effort to stop her from resigning, and he may well have been relieved that she did” – and while that did not amount to unfavourable treatment, his message about “charting a different path” did. 

“[Coban] was faced with the prospect of an unidentified change to the way she would be expected to work. A tribunal could find that, in the absence of a nondiscriminatory explanation from [Ozceylan and MP], that it amounts to unfavourable treatment due to discrimination,” explained Freshwater. 

Freshwater also said this amounted to discrimination arising from a disability as it put Coban at a disadvantage, and she was “faced with a change to her working arrangements, without any formal discussion or consideration of what allowances or adjustments could be made”. 

Freshwater continued that there was “no real attempt”  to discuss the impact of Coban’s condition or “effort to put in place measures which might enable her to work her hours and ensure optimal and efficient deployment of staff” by Ozceylan. 

They said unfavourable treatment occurred because of her absence to get treatment, and was due to her disability. But Freshwater dismissed further claims of harassment. 

A remedy hearing was held yesterday (17 August), but no outcomes have been published. 

Employment lawyer reaction

Andrew Willis, associate director of legal at Croner, said despite the employee’s short length of service, her claims for direct discrimination and discrimination arising from a disability were successful. 

“This is because such claims can be brought with any length of service, so employers still need to proceed with care even if an employee has under the two years’ service required to bring an ordinary unfair dismissal claim,” cautioned Willis. 

The claim serves as a “useful reminder” for employers to be careful about how they communicate with employees, he added, and he further highlighted the “onus on employers” to ensure they “sensitively discuss health issues with employees and consider measures which they may be able to put in place to aid employees in work”. 

Manes Partners has been contacted for comment. Coban could not be reached.