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Case Study: Direct Disability Discrimination, Harassment and Unfair Dismissal

Employment Law

How Christianne Silverwood, expert Employment Law solicitor based at our Haywards Heath office, represented an employee’s claims of direct disability discrimination, harassment and unfair dismissal.

The situation

Sylvia had been working as a part time travel adviser for a large travel company for more than 4 years. Part of her duties were to add and withdraw cash from the company safe. She was a model employee with very low absence rates and consistently positive feedback from her managers.

Sylvia had Obsessive Compulsive Disorder (OCD), causing her to have compulsive behaviours such as repeatedly checking her work, cleaning her work environment and turning off plug sockets when they were not in use. She also suffered with anxiety and stressful events exacerbated her compulsions.

Her employer knew about Sylvia’s disability from the outset. Sylvia had disclosed her OCD before she accepted the job offer and, during her employment, gave her manager a copy of a letter from a psychiatrist confirming her disability. Her first manager was supportive and allowed Sylvia to make time in the working day for any ritualistic behaviours and was sympathetic and supportive when Sylvia was stressed.

When Sylvia was transferred to a different franchise store, her new manager was less sympathetic. Consequently, Sylvia used her own time to allow for the additional time and inconvenience of the disability. For instance, she arrived at work half an hour early so that she could carry out the initial compulsive behaviours, such as cleaning her work station and ensuring plug sockets were turned off.

Colleagues also knew about Sylvia’s disability. They ridiculed her through name calling, describing her as being “anal” and a “neat freak”. Her manager told her many times to, “suck it up”, when she tried to clean or tidy her space, or check her tasks and actions. Sylvia was hurt by these comments, but tried to laugh them off.

In the summer of 2019, £1000 went missing from the Company’s safe. At the time of the missing money, Sylvia’s manager had carried out a financial transaction for the same value. Sylvia had nothing to do with this transaction. Her manager was investigated for the missing money but he was not suspended from his duties. Sylvia, however, was immediately suspended from her duties and was subsequently dismissed for theft.

She was told that CCTV evidence showed that she had been acting in breach of Company policies and that the same evidence showed that her behaviour was suspicious because she was constantly returning to the same place and checking her previous actions.

Sylvia was repeatedly asked, during the disciplinary process, to admit that the CCTV footage showed that she was out of sight of the camera, and that she was acting suspiciously. In response, Sylvia pointed out that the CCTV footage was not clear, that she was not in breach of any Company policy. Also, if she was out of sight of the camera, this was because the camera did not cover the whole area and not because she had stolen any money. She asked the employer to show her CCTV of other colleagues so that she could demonstrate that anyone in the same room would fall out of view from time to time. The employer refused to do this. Sylvia also explained, repeatedly, that she had an OCD causing her to constantly check her environment and previous actions. The investigation office did not investigate her defence or take any steps to acknowledge how the OCD impacted on Sylvia.

Sylvia appealed against the decision to dismiss her pointing out that the investigation officer’s accusations of “suspicious” behaviour were completely unfair and unfounded. The behaviour referred to was Sylvia’s normal behaviour, caused by her disability, which meant that she had to check and re-check her actions. She felt that she was being punished and accused of theft because of her disability.

On appeal, the employer upheld the original decision to dismiss Sylvia.

Sylvia was devastated by the dismissal and appeal outcome. She was a lone parent on a low income and did not know how she would cope without any income from work. Her OCD was severely exacerbated by the dismissal and she was very ill.

What Martin Searle Solicitors did

Sylvia telephoned us for advice. She explained that she was on a very limited budget and did not think she could afford legal fees. We were sympathetic to her situation and could see that she had good grounds for unfair dismissal and discrimination claims.

We advised her that her OCD was likely to amount to a disability under the Equality Act 2010, given its duration and severity.

We encouraged her to start the Acas Early Notification process in order to protect her rights to bring a claim against her former employer. We also advised her to request a copy of the CCTV footage and to make a Subject Access Request for her HR file.

Sylvia followed our telephone advice. She asked for the CCTV footage but the employer did not send this to her.

Sylvia instructed us to act for her against the Company and we submitted a detailed claim to the Employment Tribunal setting out the grounds for our client’s claims of unfair dismissal, discrimination arising from disability and breach of contract / wrongful dismissal.

We put the employer under pressure to share the CCTV footage with us. We reminded them that they would be obliged to share this information, pre-trial and during disclosure.

The outcome

The Employer agreed to settle the matter by way of a COT3 Agreement. They agreed to offer a reference and financial compensation, equivalent to more than 1 year’s salary.

Sylvia’s legal costs were £3,500. Had the case proceeded to trial, we estimated that costs would have been in the region of £8,000 – £10,000.

For expert advice on Disability Discrimination at work, contact our Employment Law team on 01273 609911, or email info@ms-solicitors.co.uk.

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