Providing managerial support may amount to reasonable adjustment

Managerial

 

What happened?

HSBC Bank employed Mr Watkins for over 40 years. The Bank was aware that he suffered from epilepsy. However, this did not interrupt his work with the Bank, as Watkins had been able to manage his condition with medication and a careful lifestyle. Around 2013, he began to experience night time seizures and by 2014, he had a daytime seizure. Shortly after the later episode, he remained absent from work on grounds of ill health for one year. During this period of absence the Bank, sought and obtained two medical reports dated 26 March and 27 May 2015.

The first report made a number of recommendations regarding how to facilitate his return to work and the implementation of active management support to prevent recurrence of his condition. One such management support recommendation was “…for his work activity and work-flow to be monitored so that he is not taking on too much.”

In August 2015, when Watkins returned to work he was invited to a return to work interview. At the point of his return to work, it was an accepted fact that Watkins did not need any reasonable adjustments. However, Watkins felt that despite his present stable health, the Bank should have carried out a risk assessment to assess what support needed to be in place to minimise further recurrences of his seizures. No such assessment, or discussion about the recommendations made in the report took place. Dissatisfied with how the Bank handled the situation Watkins filed a complaint with an Employment Tribunal (ET) raising allegations spanning over a period from 2003 to November 2014.

Before the case proceeded to a full hearing, a preliminary hearing took place to determine:

  • Whether any of the numerous allegations raised by Watkins had prospects of success or should part or all of them be struck out;
  • Whether the ET should make Watkins pay a deposit before being allowed to proceed to a full hearing;
  • Was the claim out of time and unable to progress to a full hearing?

What happened at the preliminary hearing?

The judge found that the following two allegations raised by Watkins had no prospect of success:

  • That the Bank ought to have monitored his workload; and
  • That the Bank ought to have informed his local manager that he had epilepsy.

The decision to strike out these two allegations prevented Watkins from progressing his case as it broke the chain of conduct extending over a period of time and left the remaining allegations falling outside of the three month timeframe within which a claim should be filed.  Watkins appealed the preliminary judgement.

What happened with his appeal?

The Appeal Tribunal held that Watkins could have told his manager about his condition, and as such it was not wrong for the ET to strike out this part of his claim. However, it held that the ET was wrong to strike out the complaint that the Bank ought to have monitored Watkins’ workload. Notably, the EAT remarked, “…the provision of managerial support to a disabled person may amount to the taking of a step…which it might be reasonable for an employer to have to take…” On this basis, the case was sent back to the ET for a fresh hearing of the facts.

Key point

Failure to provide managerial support to a disabled person in the form of workload monitoring or supervision may result in a failure to fulfil the legal duty to make reasonable adjustments.

Tags Managerial support, Employment, Markel Law, medical recommendations, Employee relations