Flippant comments to your employees could result in a claim for disability discrimination
In a recent case decided by the Employment Tribunal the comments of a Director were considered by the Tribunal.
The Equality Act 2010 provides various protection for employees from discrimination if they have a disability including ‘discrimination arising from disability’ which is covered by section 15(1) of the Act.
This states that discrimination arising from disability occurs where:
(a)A treats B unfavourably because of something arising in consequence of B’s disability, and
(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The employee in this case Ms Wickers was employed by a franchisee for Specsavers, Colchester Visionplus Limited, as an optical assistant at their store.
Ms Wickers had been diagnosed with depression and was taking medication for her condition, which her employer was aware of.
Ms Wickers had received previous warnings for her failure to comply with the absence notification procedure, lateness and an error in dispensing. In discussions with the Director she informed him that she was struggling with depression and became tearful in a meeting.
The Director said he had no sympathy and that everyone gets depressed sometimes, you just have to pull yourself together.
When Ms Wickers had further absence from work and another error the Director decided to instigate formal disciplinary action, causing Ms Wickers to resign. She made claims in the Tribunal for discrimination arising from disability, reasonable adjustments and harassment.
The Employment Tribunal agreed with Ms Wickers and decided that the employer’s behaviour and the Directors treatment amounted to discrimination arising from disability.
The Tribunal also agreed that the employer had failed to make reasonable adjustments to their processes and procedures and therefore Ms Wickers was placed at a disadvantage.
Points to Note
This case is a useful illustration of an employer’s lack of knowledge and understanding of their obligations under the Equality Act. It is important that all staff, and particularly managers and supervisors have training on equality and diversity issues, and that mental illness is recognised as a disability that requires adjustments in the same way as a physical disability.
Action to Take
- Ensure that you have an equality and diversity policy in your handbook;
- Train your managers on how they should deal with employees who have mental health conditions;
- Seek advice before taking disciplinary action if the issue could be related to the employees.
Wickers v Colchester Visionplus Limited t/a Specsavers Opticians
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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.