Latest case exhibits employers should take into account disability earlier than dismissing employees

The applicant said she did not know that she was not allowed to access her own records
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A Labor Court ruling published in March shows how employers need to fully understand the nature of a person’s disability before initiating disciplinary proceedings that can lead to dismissal. Two legal experts from Excello Law describe the case and its implications.

According to media reports, the Department of Labor and Pensions (DWP) has lost more cases of disability discrimination in labor courts than any other UK employer. In March, an investigation by BBC Panorama found that between 2016 and 2019 there were 134 cases of discrimination against the DWP in relation to disabled workers.

However, the DWP is by no means the only organization that needs to carry out its dismissal practices more carefully. In March 2020, Ms. SJ Austin’s successful unfair dismissal petition against the NHS Trust (The Trust) of Leeds Teaching Hospitals – a case involving Excello Law – highlighted the importance of disability considerations in this context.

The Austin case serves as a cautionary story for both employers and human resources professionals. The Trust fully recognized that Miss Austin suffered from fibromyalgia (a chronic pain condition) and depression / generalized anxiety disorder – both of which are recognized as disabilities under the Equality Act (EQA).

Austin was a single woman in her fifties and employed with the NHS from 1993 to 2017. Because of her conditions, she was also a regular patient in several NHS departments. Her fear led her to repeatedly check the next time she had a doctor’s appointment, and check her own medical records and her mother’s three times. Austin had accessed these records 141 times in total in the past few years – often several times in concentrated periods of time.

During a conversation in December 2015 with her manager, Anthony Warren, it became apparent that she had done so when she asked him why one of her appointments had been canceled before she received an official letter.

The NHS opened an investigation that only served to heighten their already high fear. Austin was informed that she was being investigated for gross misconduct. There was a significant delay, however, which further increased her anxiety and led her to frequent inquiries from Warren about the progress of the investigation.

She was suspended from Mr. Warren’s “harassment” investigation during the investigation; This exposure was found to be an act of disability discrimination in and of itself as it arose as a result of her disability. Her employment relationship was finally terminated in May 2017. After unsuccessfully applying for more than 50 positions, Austin reached out to Excello Law.

At the hearing in the tribunal, Judge Hannah Bright concluded that the Trust had discriminated against Austin for failing to realize that their state of health was the cause of their behavior and that at no stage in the process they considered their health or disability. Nor did the Trust realize that Austin really did not understand its “opaque” medical record access policy, which did not make it clear that their records were not allowed. The investigative processes and hearings were heavily criticized.

As a result, her dismissal was unfair and was ultimately due to her disability and therefore constituted discrimination.

Company or organizational policies must be transparent, not opaque – they must be written in clear, precise language so that everyone can understand them

Judge Bright awarded Austin £ 269,113 in damages, stating, “Miss Austin did not know what she was doing was wrong. She understood that she must not access or share the records of anyone outside of her immediate family, especially strangers. However, she did not understand that the same prohibition applied to her own records or that of her mother. Miss Austin did not maliciously, intentionally, or recklessly violate any policies or rules of the Trust. “The judge also found that Austin’s dismissal had resulted in her losing friends, becoming isolated and suffering from increasing anxiety
Panic attacks.

What are the further effects of the decision?

First, employers should always take appropriate steps whenever they approach concerns about an employee’s actions.

Second, initial warnings to employees are key to the layoff process. The tribunal in Austin’s case found that the dismissal was unfair because the applicant “had no way of knowing that her actions were prohibited or could lead to dismissal” and the conduct for which she was dismissed was “not at fault or at fault was “.

Managers themselves need to understand why employees act in certain ways. You should take steps to understand possible links between an employee’s disability and their behavior

Third, as far as possible, company or organizational policies must be transparent rather than opaque – in clear, concise language so that every employee can understand them.

In the meantime, managers themselves need to understand why employees act in certain ways. You should take steps to understand possible links between an employee’s disability and behavior that could be subject to disciplinary action.

If such a causal link is not recognized, there is a risk that a labor court may find in an application for unjustified dismissal that a disciplinary penalty has not taken the disability into account. It is equally important that employers pay very close attention to how the process is carried out and approached at each stage. In the Austin case, the process has been heavily criticized because the individual investigators and decision-makers did not research properly and did not consider the full range of relevant information.

Instead, they entered the process with closed minds and came to ill-informed conclusions that were perverse and unreasonable. Employers should therefore be open-minded wherever possible and ensure that all relevant information is duly taken into account in the investigation process.

In order to avoid cases of discrimination that arise in the future when considering dismissing a worker, employers need not only to ensure that they are following correct procedures and approaches based on existing company policies, but also to consider the worker’s health or disability at every stage of the process.