A UNISON member has won a claim for disability discrimination and constructive unfair dismissal against her former employer with the assistance of Thompsons NI and counsel, Michael Potter.
The total amount of compensation awarded to Michelle was £9,920.30.
Michelle Byrne worked as a communications officer for the mental health charity Aware Defeat Depression (Aware NI) for more than six years. She suffers from Ulcerative Colitis and to accommodate difficulties arising from her disability, she agreed an adjustment with Aware to reduce her full time working week to work four days per week with one day from home.
Michelle worked this arrangement with no issue for one year but she was then advised that she would have to return to full time hours with no explanation given. Despite the organisation being aware of her recognised disability, she was advised that if she wanted to continue her working pattern of four days per week, she had to make an application for such adjustments under an internal Flexible Working Policy (FWP).
Her employer failed to recognise the reasonable adjustments element of the Disability Discrimination Act and ultimately refused her request, insisting she return to work on a full time basis in the office (despite many other employees working on a part time basis including a colleague in a similar role and the chief executive of Aware).
Michelle was off work sick for three months with work-related stress due to the uncertainty and stress around her working arrangements. As a consequence, an occupational health referral was made by Aware resulting in, amongst other things, a recommendation that she be permitted to retain the previous adjustments.
Rather than re-instigating the original adjustments endorsed by OH, Aware insisted on Michelle making a formal application under the FWP. Michelle was consistently told that the four-day week may not be operationally feasible but was given no reasons as to why it may not be feasible. The adjustments were not reinstated and the employer persistently told Michelle that her job must be worked full time.
In the end, Michelle felt that she had no other option but to resign alleging the failure to reinstate the reasonable adjustments as required under the Disability Discrimination Act 1995 as a fundamental breach of contract by her employer. This ultimately destroyed trust and confidence with the final straw being Aware’s failure to accede to her request which amounted to unfair constructive dismissal. She also alleged that she was subjected to less favourable treatment compared to non-disabled employees regarding her repeated requests for the re-instatement of the original adjustments.
Under the Disability Discrimination Act 1995, an employer must not subject a disabled employee to less favourable treatment on the grounds of disability or for unjustified disability related reasons. Also, where a disabled employee is at a substantial disadvantage in some working arrangements an employer has a duty to make reasonable adjustments to remove that disadvantage.
To win a constructive dismissal case, an employee has to show that they resigned as a result of a fundamental breach of contract by their employer. Article 112F of the Employment Rights (NI) Order 1996 provides the right for an employee to apply to their employer for a change in their terms and conditions of employment if the change relates to:- (i) the hours he is required to work; (ii) the times when he is required to work; (iii) where, as between his home and a place of business of his employer, he is required to work.
The tribunal noted that: “Ordinary common sense procedures, …were not followed by this employer. All attempts by this tribunal to elicit a rational explanation for these failures were unsuccessful.”
When some important meetings took place, “No notes were taken, no record kept and no outcome written down and issued to the claimant. This amateurish approach to a serious issue is regrettable and clearly started the process of destroying the necessary level of trust and confidence between an employer and employee.”
The tribunal did not find any credible evidence to suggest that the working arrangement Michelle had sought had caused difficulties with her performance, or in the employer’s operations.
Referring to Aware’s FWP, the tribunal indicated that a statutory application for flexible working under Article 112F of the 1996 Order is entirely separate from and distinct from the consideration of reasonable adjustments under the 1995 Act and how the two legislative codes need to be considered separately noting that is unfortunate that the Employer chose to amalgamate the two in one policy known as the ‘Flexible Working Policy.’
The tribunal held that no difficulties had been raised with Michelle and there was no record of any difficulties with her original reduction in hours etc. They also concluded that she had been told in clear terms that management had determined that her post was a full time post for five days per week and that it was office-based. The tribunal felt that Michelle had reasonably felt that meeting with senior management as offered by her line manager at the time, and applying for her hours to be made permanent using an entirely inappropriate procedure (the FWP) would be futile, and described Aware’s actions in this regard as “window-dressing”.
The tribunal held that as well as failing to make reasonable adjustments for Michelle, she was also subjected to unlawful less favourable treatment. To secure any adjustment on a permanent basis going forward, Aware insisted that she make an application under the FWP which she was told would be given “full consideration”. In contrast, a colleague was given an absolute assurance that his variation would be permanent and that the use of the Flexible Working Policy was “just a formality” and to “keep the paper trail correct.”
In terms of her dismissal claim, the tribunal concluded there had been a fundamental breach of contract i.e. the failure on the part of the employer to put in place reasonable adjustments, and the
actions of the employer in directly discriminating against her on the ground
of her disability and/or for disability related reasons. Any of these breaches of the 1995 Act would have been sufficient, on its own, to establish a fundamental breach of contract entitling Michelle to treat her contract as repudiated. The tribunal therefore concluded that Michelle had also won her constructive dismissal case as well as the disability discrimination elements of it.
Michelle said: “The last two years have been very stressful and I am relieved to finally put this behind me and move on. Ulcerative Colitis is an invisible illness and along with symptoms such as fatigue, blood loss and abdominal pain; the nature of it can make you feel quite isolated.
“I hope that this tribunal ruling will remind employers of their duty to support employees with disabilities, particularly those disabilities that are not always visible.
“I would like to thank UNISON for their support, Thompsons NI Solicitors for their assistance during the case and my barrister Michael Potter for representing me at tribunal.”
George Kilpatrick, of Thompsons NI, explained: “This case is important as it emphasises an employer’s duty to make reasonable adjustments to accommodate disabled workers. It confirms that it is a separate duty from the flexible working provisions set out in a separate piece of legislation from the Disability Discrimination Act 1995.
“Michelle’s case shows the value of trade union membership as she was able to secure free legal representation to win her case.”