Disabled employee wins discrimination claim but fails to prove email questioning her capability was harassment
In Environment Agency v Donnelly the EAT had to consider if a tribunal was right to decide that while a disabled employee could arrive earlier to park nearer the workplace entrance, the employer itself had failed to make a reasonable adjustment and that an email questioning her commitment amounted to disability-related harassment.
Donnelly suffered from osteoarthritis of the knees and spondylitis, affecting her back and hip. She claimed her employer had failed to make reasonable adjustments to the workplace and had harassed her. The details of the claim were as follows:
reasonable adjustments – Donnelly was entitled to work flexitime hours. She chose to arrive at work at 9.30, but by that time the principal car park was full. This meant walking some distance from her vehicle in the overspill car park to the office, sometimes in poor weather conditions and possibly on uneven surfaces. The employer did not allocate Donnelly a space in the main car park. Instead it suggested that to overcome the problem she should come to work at 9.00, which she was able to do, although she would have to take her medication earlier to give time for it to have effect.
harassment – a manager sent an email to Donnelly when she had only recently been signed off sick with stress symptoms, referring to her negativity and expressing serious doubts as to her ‘capability or willingness’ to fulfil any role within the organisation.
The employment tribunal decided that to walk the distance from Donnelly’s car to the office, often in difficult conditions, was clearly a provision criterion or practice (PCP) that significantly disadvantaged her and the employer had failed in its duty to make reasonable adjustments by not allocating her a parking space near the office entrance. The employer had also harassed her as the content of the email sent to her was less than supportive or helpful at the time. The employer appealed.
The Employment Appeal Tribunal rejected the reasonable adjustments appeal. The tribunal had identified the PCP correctly and while Donnelly had the right and, indeed, was able to come into work at any time within the flexitime arrangements, it was not for her to make reasonable adjustments – the duty is on the employer, particularly when the organisation had given her no explanation as to what the difficulty was that prevented them allocating her a parking space in a large main car park.
The harassment appeal, however, was upheld. This was a rare case of a perverse judgment. Even though the email was not supportive or helpful, it was sent after a very poor attendance history which was not related to disability and in circumstances where any organisation could rightly question whether employment could continue. No reasonable tribunal could conclude that the email represented or contained material which met the statutory test for harassment (in other words, that it had the purpose or effect of violating Donnelly’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her).
This case highlights that where the duty to make a reasonable adjustments arises, employers cannot attempt to put the responsibility on the employee to deal with the substantial disadvantage which he or she faces. The duty is on the employer to take action, and if an adjustment cannot be made, show why it is not reasonable to do so (relying on the factors that can be taken into account in Paragraph 6.28 of the EHRC Employment Code).
As for harassment, the case is a useful reminder to employers that when investigating complaints, the unwanted conduct has to relate to a protected characteristic. The words or actions have to be taken in context and, as the EAT highlighted, it may indeed be the case that an employer is, or is viewed as, being unsupportive, unhelpful or unreasonable – but that is far from falling within the definition of harassment if the conduct is not related to a protected characteristic.
Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton.
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