Holland & Barrett constructively unfairly dismissed disabled manager after failing to make reasonable adjustments

14 Jan 2020 By Maggie Baska

Tribunal finds expecting employee with a chronic bladder condition and anxiety to work alone affected her ability to cope with the demands of a large store

A disabled manager at a health-food retailer was constructively unfairly dismissed after the chain failed to provide her with additional support, a tribunal has ruled.

The East London Employment Tribunal unanimously ruled Holland & Barrett failed to make reasonable adjustments for Miss R Harkness after it did not increase staffing hours at her store to avoid the risk of Harkness working alone, and failed to provide her with mentoring support. 

The tribunal found this failure to make reasonable adjustments directly resulted in Harkness’s resignation in June 2018, and so her resignation was considered constructive unfair dismissal.

Harkness worked with Holland & Barrett from October 2011 until her resignation in June 2018. She became manager of the Culver store after it opened in November 2016.

The tribunal heard Harkness was diagnosed with interstitial cystitis (IC), a chronic bladder condition, in 2015. She told the tribunal she experienced the need to urinate more frequently, a stress-induced urgent need to urinate and pain. This reduced after an operation, however. 

Harkness had also been diagnosed with emotional unstable personality disorder, which meant she experienced “stress-induced anxiety”. The tribunal also heard that, if stressed, she was more vulnerable to panic attacks.

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In late August 2017, a new area sales manager, Mr Gold, was appointed to oversee a cluster of stores, including the Culver store managed by Harkness. In March 2018, Gold attended the store to discuss a reduction of staff hours with Harkness, in line with what was happening in other stores. This reduction raised the prospect of some lone working – meaning only one member of staff on the shop floor – for approximately the first and last half hour of the working day. 

Gold told the tribunal he remembered Harkness raising the concern she would not be able to work on the shop floor alone because her IC could mean she might have to use the toilet without notice. He stated it was not necessary for Harkness to open and close the store for this period, and that another member of staff could do this. 

However, the tribunal heard, because the only other keyholder for the store was part time, there was still a risk Harkness would have to work alone. The tribunal found, having heard Harkness’s concerns, Gold did not explore how lone trading might be avoided at Culver. 

After the meeting, Harkness contacted Gold to say staff had not agreed to the proposed hours, and it would have to go to consultation. Around this time in March 2018, Harkness and Gold disagreed further over obtaining adequate staff cover. This culminated in both shouting at the other. 

Harkness tried to contact the regional HR contact for Holland & Barrett, Mrs Cepparulo, after the altercation; however, Cepparulo was away at the time and did not follow up on this, the tribunal heard.

Harkness told the tribunal that, by early April, she was experiencing increased anxiety symptoms including panic attacks. She told Gold on “one or two occasions” this was happening. 

She sent Gold a voicemail on the morning of 9 April explaining she was too ill with anxiety to work. But Gold did not check his voicemail and instead informed HR that Harkness was absent. 

HR sent Harkness a letter that tribunal documents showed incorrectly stated Gold had tried to contact her and she had failed to contact him. HR asked her to contact him by 11 April, otherwise it would be assumed it was her intention to terminate her contract. Gold did eventually pick up the voicemail and informed HR, but the threat to terminate her contract was not retracted.

The matter was resolved by 11 April, and Holland & Barrett did not treat Harkness as having terminated her contract, the tribunal heard.

On 18 May, Harkness had a welfare call with another HR officer, Miss Ellwood. She told Ellwood the role was becoming too demanding, lone trading was difficult because of her IC and she would prefer a head office role. Ellwood informed Harkness that internal job vacancies were online. Harkness applied for the role of management development trainer but did not pass the application stage.

The tribunal heard Harkness remained off sick until June 2018 because of a postponed operation. Ellwood attempted to schedule another welfare meeting in June, but this was ultimately cancelled.

Harkness resigned by email on 28 June citing stress caused by Holland & Barrett’s behaviour towards her and a lack of support; the failure to transfer her into a role in head office and the firm’s requirement that she apply for such a role; the prospect of lone trading; and Cepparulo’s failure to respond to her email. 

The London tribunal found Harkness’s disabilities put her at a substantial disadvantage when coping with the stresses of being store manager at Culver, including the prospect of lone trade at a busy store.

Judge Moor said the possibility Harkness would have to lone trade at Culver was a breach of implied trust, as neither Gold nor Ellwood discussed ways to support Harkness. 

“When faced with an employee who was explaining that her particular need to urinate frequently and sometimes urgently meant that a change to hours was going to be difficult, the maintenance of trust and confidence demanded that the employer actively sought a solution with the employee and took her concerns seriously,” Moor said. “Neither Mr Gold nor Miss Ellwood did so here.”

Andrew Willis, head of legal at HR-inform, said this case showed a “multitude of situations” where management failed to take an employee’s disability into account. “Employers should never underestimate the dangers of poorly managing disabled employees; as seen here, a weak support system that does not consider their specific needs could result in a successful discrimination claim going forward,” Willis said.

A spokesperson for Holland & Barrett said: “We take the wellbeing of our colleagues seriously and, while we do not agree with all the points in this case, we respect the findings of the Tribunal Service. We are disappointed with the outcome and have and will continue to review our policies, processes and systems.”

Harkness could not be reached for comment.

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