In a recent case, the claimant was a senior flight attendant and a member of the cabin crew based at Stansted airport. After experiencing severe headaches and seizures for several years, the claimant was diagnosed with a benign brain tumour. Due to the increased occurrence of her seizures, the claimant was signed off as unfit to carry out her current role and provided her employer with sick notes over several months, eventually exhausting her sick pay entitlement.
Her medical notes she provided to her employer referred to her diagnosis and the fact that she had been suffering from seizures and headaches for several years. Prior to this, the Claimant informed her employer verbally that she had been suffering headaches for over 2 years, caused by a medical condition. Her GP fit notes recommended that she may be fit for work on a phased return, altered hours or amended duties (i.e. for any ground duties, with flying being excluded at the present time).
Notwithstanding the very clear advice from the claimant’s doctor stating that she was fit to return to work with certain adjustments, her employer informed her that they would only look into her request to return to work once her doctor advised her she was fit to do so. Her employer did not make contact with the claimant during her sickness absence, with the exception of a 5-minute telephone call, and did not respond to the Claimant’s letter informing her employer that she was fit for work for all or any ground duties, until they telephoned her on the day she was due to return to work on expiry of her most recent fit note to inform her there were no ground roles available because she was employed as a Customer Services Supervisor. She was told, however, that she was free to check the career section of the website for alternative roles.
The Claimant wrote to her employer complaining that despite being advised there were no ground duties that she could be considered for, she discovered that there was a position of cash office support operative on the company website. The claimant said this role could amount to suitable alternative employment and that she would have expected the company to consider/allocate this position to enable her to return to work. The claimant complained she felt there was no intention to allow her to return to work, which she said was very distressing and grossly unfair.
She was informed that she would need to formally apply for the role through a competitive selection process, if she was interested in the vacancy. Having gone on to secure employment with another employer, the claimant resigned, stating that her employer’s “intentional and continuous” failure to provide her with work and various discriminatory practices left her with no choice but to resign. The Claimant brought a claim for disability discrimination and constructive dismissal.
The Tribunal’s decision
The tribunal found that the employer should have referred the claimant for an occupational health report where there was any doubt about the amended duties that the claimant could undertake. It was at the point where it became clear she was not fit enough to undertake her current role, that the employer should have entered into a dialogue with the claimant about a phased return to work, exploring specifically what altered hours or amended duties she was able to undertake and how this could be accommodated. However, the employer chose not to consider any possible adjustments.
In a rather scathing judgment, the tribunal judge commented that, “to suggest to a disabled employee that they would have to check the website for vacancies is an indication of the employer washing their hand of any responsibility. It sets the tone and indicates that the respondent [employer] cannot be bothered to undertake even that most basic of reasonable adjustments”.
The tribunal commented that to subject someone to open competition for a role which may require reasonable adjustments to be considered is to fundamentally disadvantage a disabled candidate, who was currently off sick. The tribunal could find no logic for not making this adjustment, as it would require more time, effort and costs to run a full recruitment selection process than to allocate a disabled employee to such a vacancy. The only reason the tribunal could identify to justify placing the claimant in open competition was to circumvent the need to make reasonable adjustments for their disabled employee. The tribunal determined that it was obvious in the circumstances that the employer should not have insisted that the claimant apply for any available role through open competition, as this was to completely disregard its obligations under the Equality Act.
The tribunal found that the Claimant did not resign because of her illness, nor did she resign for any other reason than her employer’s failure to provide her with work. This failure amounted to both disability discrimination and a breach of trust and confidence, entitling the employee to resign and claim constructive dismissal.
Our advice
The case is a reminder that the employer has a positive obligation to make reasonable enquiries to ascertain whether an employee has a disability and whether a duty to make adjustments has thereby been triggered. This includes a duty to make reasonable adjustments to any alternative vacant roles that may exist where the employee is not fit to carry out their existing role. Had the employer made those enquiries, they would have come to the conclusion that the claimant was disabled. Unfortunately, despite the airline being a large employer with substantial resources, in this case it does appear that the employer was not aware of their statutory duty to put in place reasonable adjustments for their disabled employee and that their staff had not received a minimal level of training in this regard. Furthermore, the employee’s GP had identified that the employee may be fit for work where certain adjustments could be put in place, but these suggestions were largely ignored by the relevant decision makers. This ultimately resulted in a finding of discrimination which could have otherwise been avoided had the employer put in place training for the appropriate staff, or sought timely legal advice.
The FSB Legal Helpline offers advice to FSB members on a range of legal issues, including the requirements around reasonable adjustments in the workplace for disabled employees.