In the case of Miss C Robinson v Mind Monmouthshire Ltd the Employment Tribunal found in favour of the Claimant’s claims for automatic unfair dismissal (public interest disclosure) on a constructive dismissal basis, failure to make reasonable adjustments and victimisation and awarded the Claimant £115,657.50 following the remedy hearing which took place in Cardiff in February this year.
This case is an example of how a number of failings by an employer can have significant consequences. In particular, in this case it was found that the decision to force the employee to go through the stress of a grievance procedure despite being aware of her disability, the failure to implement reasonable adjustments suggested by occupational health, as well as contacting third parties outside of the organisation to discuss her activities, all formed part of a chain of events that amounted to a breach of the implied term of trust and confidence she was owed as an employee.
Facts of the case
Miss C Robinson (the ‘Claimant’) was employed by Mind Monmouthshire (the ‘Respondent’) as an Information Advice and Assistance Worker, working in its Abergavenny office until 7th December 2017. She had also worked prior to this for the Respondent on a fixed term contract as a Community Outreach Worker from 23rd February 2016 which formed part of continuous employment.
The Claimant had a disability, Complex Post Traumatic Stress Disorder (PTSD). The Claimant overheard members of staff imitating people with physical disabilities in August 2016 and verbally raised this concern. The Claimant was asked if she wanted to raise a grievance and she chose not to due to her previous traumatic experience of pursuing a grievance working for a former employer. No attempt was made by the Respondent to resolve the issue and further similar incidents occurred involving offensive banter.
The Tribunal found the Claimant had made a protected disclosure about this incident and it amounted to disability related harassment under the Equality Act 2010 even though the comments were not related to the Claimant’s own disability (which is a common misconception). The Tribunal found the Respondent should have dealt with the complaint robustly even though the Claimant did not wish to raise a formal grievance as the complaint was serious enough and not in line with their values of equal opportunities. The Claimant submitted she was ostracized because of the public interest disclosure.
In March 2017 the Claimant started to develop symptoms of dissociation and suicidal thoughts and was referred for counselling. In April 2017 she was diagnosed with recurrent depressive disorder and on 11th April she was prescribed antidepressant medication and diazepam.
The Claimant was referred for an Occupational Health (OH) report on 27th June 2017. The physician recommended she be allowed to work in an alternative work location or roles, that she be given a mentor to support her, and also that the Respondent should carry out a risk assessment for work-related stress. The Respondent failed to carry out these recommendations.
The Claimant subsequently attended a capability hearing on 18th July 2017 and was asked about the environment as referred to in the OH report. It was suggested to the Claimant that she raise a formal grievance. The Tribunal found this was an unreasonable request given she was suffering from a mental impairment and that the Respondent could have put in place mediation as suggested by OH.
The Claimant subsequently submitted a grievance on 28th July 2017. The grievance was not upheld and neither was the appeal though mediation was recommended. The Tribunal stated in its judgment “By operating its grievance procedure in this way the Claimant had to go through the trauma that she experienced at work in continuing to relay what happened either in documentation or in a hearing. We found this to be an unnecessary bar”.
The Claimant resigned on 1st December 2017 and the Tribunal found the last straw was her movements were being queried with people outside the organisation in terms of training. The Tribunal stated “ The Respondent’s actions in not managing the incident, not addressing staff relationship problems because of it and investigating it via a grievance procedure all arose because it refused to take full responsibility for the seriousness of the situation and the effect that it had on the Claimant. This is likely to be the case because two managers were involved. Therefore the Claimant succeeds in her claim for unfair dismissal under s.103A Employment Rights Act 1996”.
The Employment Tribunal upheld the Claimant’s complaints for automatic unfair dismissal (public interest disclosure) on a constructive dismissal basis, failure to make reasonable adjustments and victimisation and awarded the Claimant £115,657.50.
Important take aways for employers
1 - It is important for employers to be aware of when a protected disclosure (whistleblowing) is being made. The employee/ worker does not need to say they are making a protected disclosure for it to be classed as whistleblowing and therefore protected from dismissal or suffering from a detriment.
2 - Harassment is defined as unwanted conduct related to a protected characteristic. This wording is extremely wide - harassment does not need to relate to the employee/ worker’s protected characteristic.
3 - When a complaint is raised ‘informally’, the Tribunal expects employers to take a view as to whether it needs to be dealt with formally as it is so serious or whether there are alternatives that can be used such as mediation while taking into account the employee/ worker’s concern. It is a fine balancing act.
4 - Failing to deal with any allegations of detriments suffered because of allegations of whistleblowing or harassment could amount to a breach of an implied term of trust and confidence. In this case the Tribunal found the Claimant was automatically unfairly dismissed under s.103A Employment Rights Act 1996 meaning the detriments suffered caused her to resign and her losses were not subject to the statutory unfair dismissal cap.
The Employment Tribunal judgment in Miss C Robinson v Mind Monmouthshire Ltd can be found here.
If you would like any further information concerning the issues raised in this article, please feel free to contact the employment department at Berry Smith on 02920 345 511 or at firstname.lastname@example.org.