The law on disability discrimination is complex, particularly in the field of reasonable adjustments. The case below is a reminder of just how expensive it can be if an employer doesn’t meet their duties to a disabled employee in that regard.
In Bannister v HMRC, Ms Bannister had been employed by HMRC in an administrative role since 1990. Towards the end of 2013, a reorganisation resulted in her team being broken up and moved into alternative roles. As part of that reorganisation, Ms Bannister was asked to work from a different floor.
Not long after the move was announced, Ms Bannister called her manager and informed them that she was struggling to cope. In a subsequent call she told her manager that she was an alcoholic, and that she had mental health difficulties that were stopping her from being able to move desks.
After discussions with a different manager, Ms Bannister agreed to move desk and explained that her mental health difficulties had arisen as she was settled in her previous working environment.
Shortly after this, in early 2014, HMRC received a report from an Occupational Health (OH) adviser that stated that Ms Bannister had been suffering from depression for three years and that it was likely for Ms Bannister to experience recurring difficulties in relation to her mental health. However, she was deemed fit to work by OH.
Ms Bannister’s level of attendance then began to deteriorate, and in April 2014 she was issued a first written warning. Her intermittent attendance continued until March 2015, at which point she went off sick and submitted fit notes citing alcohol dependence, anxiety and depression.
In April 2015 there was a further reorganisation and Ms Bannister was again asked to move teams. Ms Bannister expressed her unhappiness at this, but was told that the change had to be implemented. During those discussions, a team leader told Ms Bannister that he was not aware of Ms Bannister’s difficulties in relation to her last change of teams, and that he ‘had no interest’ in them.
Ms Bannister and HMRC had further discussions about potentially returning to work, but conversations regarding the change of teams broke down.
In August 2015 HMRC reviewed Ms Bannister’s attendance and made the decision to dismiss her. Ms Bannister appealed but the decision to dismiss was upheld. Ms Bannister then claimed disability discrimination.
The Employment Tribunal (ET) upheld Ms Bannister’s claim and found that HMRC failed to make reasonable adjustments for her. The ET referred to evidence submitted by Ms Bannister that she ‘needed the security of an established routine at the workplace and that any change posed a threat that unsettled her’. Ms Bannister provided examples of this from her everyday life, such as that she would not board a bus if she considered it too busy already.
The ET held that HMRC should have allowed Ms Bannister to work from her previous desk for a time to allow her to prepare herself for the move, which could have allowed her to return to work.
When calculating compensation, the ET took into account her lost earnings, her public sector pension losses and injury to feelings. It awarded approximately £17,000, £38,000 and £15,000 for those respective elements, with her total compensation totalling over £75,000.
This case highlights the need to consider how employees with mental health difficulties might struggle with workplace changes and take steps to alleviate the impact of those changes. HMRC was given a medical opinion on Ms Bannister’s conditions in early 2014 and as a result should have considered making reasonable adjustments when the second change in teams was proposed.
If it had consulted with Ms Bannister in relation to helping her manage the second move rather than pushing it through without supporting her, Ms Bannister may have been able to remain in work.
It is also worth noting that, although Ms Bannister’s alcohol dependence was not itself a disability, the mental health conditions arising from it (anxiety and depression) were disabilities. This too reminds us that employers should not look at an individual situation too narrowly when deciding whether disability could be a factor, and that a more holistic view of the circumstances needs to be taken.
If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.