A former employee of the housing charity Shelter has been awarded over £28,000 after winning his case for constructive unfair dismissal, disability discrimination, harassment and failure to make reasonable adjustments.
The case of Bulloss v Shelter, The National Campaign for Homeless People, highlights the importance of employers acting appropriately when managing employees who have a disability and of being aware of their obligations when it comes to making reasonable adjustments.
The Facts of the Case
The employee worked for Shelter initially as a telephone advisor. After three years he requested a move to a new webchat team and was given a four week trial period which he needed to pass to remain in that role.
Part-way through the trial period he took some time off due to illness and in a return to work meeting he told his team leader how tiring it was to learn webchat because he’d never had to write so much before. He also said he believed this was mostly because he was dyslexic. However, he didn’t want to return to phone work as he would have to work nights and weekends.
The employee continued with the trial period for the webchat role. He felt he was improving, and the team leader agreed that the standard of advice he gave was good, but there were still mistakes in his spelling and grammar. He was given a week to improve as it was felt that these errors reflected badly on the charity. A few days later, the employee requested more leave as he felt exhausted from work. When he returned, he was told he had failed the trial and was being moved back to telephone only work.
The employee took a month off work due to anxiety and when he returned informed his employer that he had been diagnosed with dyslexia. He requested a phased return to work and reasonable adjustments. After a week, he was struggling with exhaustion from working the phone shifts. He asked about being moved back to webchat and reasonable adjustments to accommodate his disability.
The employer told him he would not be moved back to webchat and there were no reasonable adjustments to be made because his dyslexia didn’t affect his ability on the phone.
The employee resigned because of how he had been treated and complained to an employment tribunal that he had been constructively unfairly dismissed, discriminated against and harassed and that his employer had failed in their duty to make reasonable adjustments.
The employment tribunal upheld these claims and awarded the employee over £28,000 in compensation. It was found that:
- The employer had breached their duty to make reasonable adjustments as they were set against even contemplating adjustments for the web based role. The employer considered that they had the easier route of just sending the employee back to telephone advice. The tribunal found that whilst the employee’s job description covered both telephone advice and web chat advice, that should not mean that a disabled employee who wished to undertake web chat work rather than telephone work should be denied reasonable adjustments to do so and instead, without further consideration, be returned to telephone work.
- The employee was constructively unfairly dismissed as the implied term of trust and confidence had been breached by the employer’s approach and attitude to reasonable adjustments.
- The increased monitoring and examination of the employee’s work when he was undertaking the webchat trial was discrimination arising from disability. It was unfavourable treatment which the employer could not justify as a proportionate mean of achieving a legitimate aim because they had failed to make reasonable adjustments to help the employee.
- Internal emails obtained by the employee which were dismissive and cynical of his disability and the duty to make reasonable adjustments were harassment and direct disability discrimination. This was the case even though the employer never anticipated the correspondence would come to the employee’s attention and it only did so after he made a subject access request.
It’s important for employers to be alert to their obligation to make reasonable adjustments for employees who have a disability. The lack of awareness of this obligation and the employer’s attitude towards reasonable adjustments were at the heart of this case.
Whilst many employers are familiar with the term ‘reasonable adjustments’ it’s important to know when the duty to make them arises. Employers are under an obligation to make reasonable adjustments if a disabled employee is suffering a disadvantage compared to a non-disabled employee because of:
- A physical feature of the premises
- A provision, criteria or practice in the organisation
- The absence of an auxiliary aid (an auxiliary aid is something which provides support or assistance to a disabled person).
Making ‘reasonable adjustments’ means that you will need to take reasonable steps to remove the disadvantage experienced by the disabled employee. What will be reasonable, will depend on the circumstances of the case. Adjustments could for example include:
- Acquiring or modifying equipment
- Altering performance targets
- Agreeing changes to duties or working hours
- Providing information in accessible formats
If you have any questions regarding any of the areas covered in this Legal Update or any other employment law matter, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.