Designer with anxiety who was transferred out of role wins tribunal

31 Jul 2018 By Emily Burt

Moving employee to position where progress was capped is ruled disability discrimination

A designer whose role was changed after her employer became concerned about her anxiety disorder has won claims for disability discrimination and failure to make reasonable adjustment at the East London employment tribunal

Jenna Frost, who had suffered from anxiety throughout her life, worked as a senior designer at Colchester-based Retail Design Solutions from April 2014. The tribunal heard that her managers were aware of her anxiety, but she felt able to control her condition at work and the job acted as a distraction. 

In 2016, Ben Froud joined the company and became Frost’s line manager, but the relationship between Froud and Frost was not a good one. 

On 1 March 2017, Froud and Frost were due to attend a development meeting with Sainsbury’s, one of the company’s major clients. However, the day before the meeting, Frost emailed Froud asking him not to come, adding that his presence would worsen her anxiety. 

After being questioned about the email by management, she disclosed to operations manager Matt Miller that she had been feeling extremely anxious ahead of the meeting and had experienced three sleepless nights preceding it. She said she “could not cope” if Froud would be in attendance. 

Shortly after this incident, and taking into account the department’s financial performance, Anthony Kent, director of Retail Design Solutions, decided to place the branding team – which Frost was part of – under new management. He also transferred Frost’s role to the Sainsbury’s store planning team, where she would manage a team of six. 

In a witness statement submitted to the tribunal, Kent said: “Moving [Frost] to the Sainsbury’s team would be the most effective means of increasing turnover within branding and safeguarding her wellbeing.” 

When Frost was told about the reorganisation on 8 March 2017, she was told it was partly because of her condition and its impact on her ability to attend meetings. Unhappy with the decision, she submitted a formal grievance on 14 March 2017. 

During the subsequent grievance investigation, which passed through three stages between 14 March and 5 May 2017, it was flagged that Frost’s career progression in the company would depend on her managing her anxiety condition. Kent summarised that she had been moved because of her condition and health, and because of the email asking Froud not to attend the meeting. He told Frost the move was non-negotiable. 

The tribunal noted that, at the end of the grievance appeal hearing, when Frost expressed concerns that she would be unable to progress, marketing director Ken Kent, who was chairing the appeal, said: “That is up to you Jenna. If you can overcome your anxiety and show us, we have no problem with you going to meetings. This is up to you.” 

As Retail Design Solutions had known about Frost’s anxiety from the beginning of her employment with them, the tribunal found that it knew she was a disabled person at all relevant times for the purposes of her disability discrimination claim. The decision to move her role – and effectively cap her progression – because of her anxiety therefore arose as a result of her disability, the tribunal found. 

Andrew Willis, head of legal at CIPD HR-Inform, said employers needed to be alert to the legal protection individuals have around discrimination arising from a disability. 

“The protection offered is now wider than it historically was. In addition to claiming they have suffered less favourable treatment directly because of their disability – for example, being refused a promotion because of their disability – an individual can now claim that less favourable treatment occurred because of something arising in consequence of the disability,” he said. 

“Employers must consider the causal link that could be drawn between the employee’s disability and any decisions the employer makes about their employment.”

During the grievance process, Frost also suggested adjustments that could have helped her stay in her current position, such as allowing colleagues to drive and attend meetings with her, or holding discussions with her ahead of time to help reduce her anxiety. However, her employers did not explore any of these ideas. The tribunal found the company had failed to make reasonable adjustments and had indirectly discriminated against Frost.

A remedy hearing is scheduled for 7 September 2018. Frost also brought claims for direct discrimination, harassment and victimisation but these failed. 

Retail Design Solutions has been contacted for comment.

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