Employer acted 'perversely' in sacking of disabled woman, tribunal finds

23 Jan 2019 By Maggie Baska

Judge criticises government department for ‘slavishly’ following absence policies without considering reasonable adjustments

A disabled woman was discriminated against when she was unfairly dismissed by the Department of Work and Pensions (DWP), according to a recent employment tribunal ruling.

Isabella Valentine was dismissed less than two months into a 12-month programme specifically created to help the long-term unemployed and others groups struggling to find employment into work.

A Norwich tribunal ruled the DWP acted in a “perverse” manner when handling Valentine’s disability and had “failed in their duty to make reasonable adjustments” under the Equality Act.

Valentine joined DWP on 3 October 2016 as an apprentice in a back-to-work programme meant for individuals likely to “require a degree of nurturing to help them”, according to the programme’s line manager’s guide.

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Valentine completed a health declaration form prior to starting the programme stating she was on “antidepressants and migraine blockers”. The tribunal heard she could function on a day-to-day basis without any matters listed on the declaration form affecting her.

On 11 October, Valentine had a migraine and “needed to take a day off”. She confirmed on her return to work she had “suffered a migraine” and also an allergic reaction to her medication. Employment judge Postle pointed out DWP “would have been aware” at this time Valentine suffered from migraines, and “it might have been prudent” to refer her to occupational health.

Valentine was absent from work a further three days unrelated to her migraine, triggering the DWP’s absence management procedure for employees within their probation period. This policy gave managers the “discretion to consider a written warning” after four or more sick days, and allows dismissal to be considered if any further sickness absences occur during the probation period following the written warning.

The policy also said absences related to disability were “not to be counted in the trigger days” and that managers “should take into account special circumstances”, including the “potential impact of disability”, when deciding if a warning is appropriate.

Valentine’s line manager Miss Locke called an attendance management meeting upon Valentine’s return to work as the four-day trigger point had been reached. Valentine attended the meeting on 7 November, where she explained the migraines were “regular though unpredictable”, and “medication did not always ward them off”.

Postle said Locke “failed to realise” Valentine’s migraines were a problem, and her suggestion Valentine would only receive a referral to occupational health if she “was able to get through her probation period” seemed “frankly perverse”. 

Valentine was absent again because of migraines for a period commencing 9 November, upon which Locke referred to the DWP centre manager Miss Ely that Valentine “should be dismissed”. Valentine returned on 14 November and received a letter inviting her to a meeting with Ely.

Valentine was dismissed by letter on 28 November and was unsuccessful in her appeal. 

Postle ruled Valentine was unfairly dismissed and had “suffered unfavourable treatment” due to her disability. He also said Valentine’s manager appeared to have “slavishly followed the [absence management] policy in a blinkered manner”. 

A DWP spokesperson said they “accept the decision”.

“Our general approach is a supportive one – we provide employees with free access to counselling, health advice, physiotherapy and workplace adjustments to manage absences, and we do not dismiss staff without proper consideration and taking professional advice,” they said.

Julian Outen, partner and head of employment at Ellisons, told People Management this case is a reminder that employers “should be alive” to the fact employees may be disabled regardless where they are in their career. 

“The message is to listen to what your employee is telling you and not to follow your procedures ‘slavishly’,” Outen said. “Consider whether there are reasons to depart from your policies, be alive to an employee being disabled and get expert input from occupational health if in doubt.”

Melanie Stancliffe, employment partner at Irwin Mitchell, said HR should “err on the side of caution” when considering an employee’s absence could be due to disability. 

“Occupational health is very helpful but also a cost, but it can be helpful for smaller employers to have conversations with their employees to discuss the absences,” said Stancliffe.

She explained employers could even try to consult with the individual employee’s doctor to get input on the impact of their disability or sickness, what effect it has on the person and what adjustments should be made.

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