How Sarah Henderson, Employment Law solicitor based in our Brighton office negotiated an exit package for a disabled employee. She was required to return to the office after lockdown but was medically unable to due to her need to shield.
Dorothy was an experienced and well-regarded customer service agent working for Island Connections, a travel agent. She has a chronic lung condition which left her particularly vulnerable to Covid-19.
During lockdown, like all her colleagues, she had worked from home while her employer was operating a modified service. This meant that she could do most of her work via email rather than on the phone, which was normally the case.
In June 2021, her employer required all of their staff to return to the office. Despite the general easing, her medical condition, for which she was taking immuno- suppressant medication, meant that she was still vulnerable. Herr GP and treating specialist recommended that she be allowed to continue to work from home.
Her employer refused and her manager made comments which indicated a belief that her desire to work from home was a lifestyle choice rather than a genuine medical need. For example he questioned her about what she was doing outside of work and compared her situation with colleagues who might also want to work from home for other reasons.
Her employer eventually forced her to take sick leave, despite the advice from her medical team being that she was fully fit for all aspects of her work, save that she needed to work from home.
Dorothy came to us as she found herself at an impasse and she was suffering an ongoing significant shortfall in her wages due to receiving only Statutory Sick Pay. She had submitted a grievance herself which was not successful at the first stage. Her aim was to put pressure on her employer to make the reasonable adjustment she required, namely to allow her to work from home.
Sarah advised her that we considered that her medical condition would make her a disabled person under the Equality Act 2010 and therefore her employer had an obligation to make reasonable adjustments.
They had provided no evidence or argument to indicate that the adjustment she required was unreasonable. Sarah assisted her in drafting her grievance appeal and guided her through the ACAS Early Conciliation process.
Some justification was provided by the employer in the grievance appeal outcome. They sought to rely on the monitoring requirements contained in their contracts with the organisations they worked for which meant that working from home, using a mobile phone, was not feasible. We were not satisfied that this justification offered gave them a genuine defence and continued to press the employer for evidence.
Our instructions then changed, as Dorothy decided that she no longer wanted to return to work but wished to be compensated for what she had lost to date and her injury to feelings. We therefore changed our focus and approached Island Connections on a “without prejudice” basis.
We lodged a disability discrimination claim (failure to make reasonable adjustments and disability-related harassment) to protect Dorothy’s position on limitation.
We were able to negotiate a good termination package which fully compensated Dorothy for her contractual losses, her historic lost earnings and an ex gratia payment which was equivalent to 5 months’ salary.
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