Disability Discrimination
Harkness v Holland & Barrett Retail Ltd (2018)
In this recent case there are considerations in regards to the needs of an employee with a disability. It proves that where employers do not give genuine, reasonable and adequate consideration towards the needs of disabled employees and the issue of reasonable adjustments, it can lead to an employee successfully claiming unfair constructive dismissal. This case clearly demonstrates that even large, national companies, with vast resources can mishandle situations and get it wrong. This emphasises the need to get professional HR advice to manage the situation and prevent disability and constructive dismissal claims.
FACTS
Miss Harkness (H) was employed by Holland & Barrett (HB) from October 2011 until she resigned in June 2018. She became a manager of their Culver branch in 2016. In 2015, she was diagnosed with a condition which required her to urinate more regularly, particularly when she was under stress. The condition improved after an operation. She later developed a personality disorder condition which caused her to experience stress induced anxiety and panic attacks.
In August 2017, a new Area Manager (G) was appointed to cover this shop. In March 2018, G meet H in Culver to discuss reduction of staffing hours in line with company-wide policy. This policy would have meant that there was only one member of staff on the shop floor at the beginning and at the end of the day. H felt she could not work alone because she could experience the need to urinate at any time without notice and would have to leave the shop without any attending staff. She raised these concerns with G who felt it was not necessary for H to open or close the shop for this period as someone else could do that.
After this meeting H contacted G to say that the proposal had not been accepted and they would have to consult all the staff. Later, there was a further disagreement between them relating to obtaining adequate staffing levels, which resulted in both shouting at each other. Following this incident, H tried to contact the regional HR contact (C) without success. Around April 2018, H started experiencing increased anxiety and panic attacks, which was communicated to G on several occasions, including a voicemail on 9th April informing him that she was too ill to work with anxiety. G did not check his voicemail and instead reported her to HR as being absent from work. HR sent H a letter alleging that G had tried to contact H (which later was proved to be false), and that she should contact G by 11th April otherwise they would assume that she intended to resign. Although this miscommunication was later clarified, the threat to terminate her contract was not retracted.
On 18th May, H had a welfare meeting, where she informed the HR Officer that her role was becoming too demanding, her IC was making it difficult to cope with lone working, and that she would prefer a HQ role. Having applied for an internal vacancy at HQ, she failed the application process. Another welfare meeting was arranged but was subsequently cancelled, and H remained on sick leave until June 2018
On 28th June 2018, H resigned by email indicating stress caused by Holland & Barrett’s conduct towards her, lack of support, failure to transfer her into a head office role, their insistence on having to apply for such a role, the prospects of lone working and the failure of the regional HR contact’s failure to respond to her communication.
DECISION
The Tribunal found that H’s disabilities put her at a huge disadvantage when trying to manage the problems of being a store manager and trying to cope with the prospect of lone working in a busy store. The judge said that the “possibility of lone working was a breach of implied trust” as neither G nor the HR Officer discussed ways to support H. “When faced with an employee who was explaining that her need to urinate frequently and sometimes urgently, meant that a change to hours was going to be difficult, the maintenance of trust and confidence demanded that the employer actively sought a solution with the employee and took her concerns seriously. Neither G nor the HR Officer did so here” (Judge Moor).
The Tribunal unanimously ruled that Holland & Barrett failed to make reasonable adjustments for H after it did not increase staffing hours at her store to avoid the risk of H working alone and failed to provide her with support. These failures directly resulted in H’s resignation, and this amounted to constructive unfair dismissal.
COMMENT
This case blatantly emphasises that where an employer is faced with an employee who has (or may have) special needs, then the employer is expected, and indeed under a statutory duty, to investigate the issues, fully support the employee and then consider making reasonable adjustments to accommodate the employee. These steps must be genuine and adequate. There are no shortcuts or exemptions. It is therefore imperative that employers get the correct HR support to manage the situation. As the case proves, even large organisations can fall foul of the law.
Our HR experts can guide you through the minefield of legislation and help you manage the situation in a sensitive and commercially focused manner. Please call us on 0333 240 7208 or contact us here.
