Would you rather: pay £62,381 in compensation OR make “reasonable adjustments”?

On 4 January 2021, an employer was ordered to pay to a Claimant £31,500 plus interest for injury to feelings, personal injury and aggravated damages and a further £21,897 plus interest for financial loss, both figures including a 25% uplift for the employer’s failure to follow the ACAS code. The case here is Mrs J Marsden v Department for Work and Pensions: 2405365/2018.

Since 2002 the Claimant had been suffering with clinical depression and anxiety. This was triggered by the Claimant’s line-manager blocking her promotion, and the Employer’s subsequent mishandling of the Claimant’s equal opportunities grievance. A preliminary hearing determined that the Claimant was disabled under the Equality Act 2010.

The issues between the Claimant and the Employer continued from 2002 until the outcome of this case. The Claimant raised many grievances and numerous occupational health reports were conducted over this period of time, during which the Employer did not fully cooperate. An example of this was the Employer producing a briefing document to a senior team regarding the ongoing and historical issues with the Claimant that included incorrect information (the “Briefing Document”). On 30 October 2017, the Claimant wrote to the Employer asking for a reasonable adjustment, that the Briefing Document be corrected. The Employer responded to say, “as per previous emails no further investigations will be undertaken. It is not a reasonable adjustment to have records adjusted” and on the 1 November 2017 that it will “not be investigated any further”.

In December 2017 the Claimant underwent a further occupational health report. The occupational health advisor reported the Claimant was suffering from stress and depression and that it was linked to the issues regarding the incorrect information on her personal records (the Briefing Document). The adviser assessed this would continue until the issue was resolved and advised the Claimant should be given the opportunity to meet with someone from HR to discuss the case in order to provide closure. In January 2018 the Employer decided not to accommodate this and asked the Claimant to stop any further correspondence.

In February 2018 the Claimant raised a grievance and contacted ACAS to commence early conciliation. The Employer did not uphold the grievance. The Claimant went on sick leave in June 2018 and a number of further occupational health reports were completed. The report dated September 2018, again, concluded the Claimant was unlikely to recover until the issues were resolved. The adviser deemed the Claimant unfit to work.

The Employment Tribunal held that the Employer, by refusing to meet the Claimant face-to-face to discuss the issues raised by the Claimant, had failed to make reasonable adjustments. The Tribunal also held the Claimant suffered various acts of disability discrimination as well as addressing the Employer’s failure to follow ACAS procedure. This case highlights the importance of employers assessing and ensuring any reasonable adjustments are made in the situation that they know, or ought to know, of an employee’s disability.

Our employment team regularly provide equality and diversity training to employers of all sizes. Please join us on 24 February 2020 for our seminar on reasonable adjustments for disabled employees and customers. To sign up, please follow this link.

>> Judgement 

For further information, or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Alistair McArthur
Partner, Head of Employment
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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