The Claimant had been employed by the local authority (the Respondent) since 1995 as an early years’ consultant. In 2012 she was promoted into the role of “lead senior early years’ consultant”, as a “temporary” step up only due to planned restructures. Said restructure did not happen until 2018. She was previously a senior early year’s area team leader, along with 2 colleagues.
In 2014 the claimant was diagnosed with cancer. This led to a long period of absence over 2015 and part of 2016. She returned to her substantive role, regrettably her cancer also returned in 2017. This led to another long period of sickness absence. During her absence, the Claimant’s work was mainly covered informally, by her junior colleague (who was previously working in the same role as the Claimant) and her manager. The Claimant was always adamant she wished to return to her substantive role and did not want or need to relinquish responsibilities. Over the years, she also worked additional hours to make up for time off taken for chemotherapy treatment. The Claimant was a valued member of the team and seen as a very competent employee.
In the initial restructuring plan, the intention was to ring-fence the new lead role (redesigned) for the Claimant. It was accepted as part of the case that whilst the new role was a slightly higher grade, it was perfectly suitable for the Claimant. It was substantially her role. The Claimant, due to her absence, was not aware of this. The ring-fencing approach was then challenged by colleagues present at the time of the consultation. There were 2 assumptions underpinning this challenge; that the Claimant was merely acting up in her lead role and that her junior colleague was formally covering the Claimant’s role during her absence (thus acting up herself). Both assumptions were found, by the Tribunal, to be inaccurate. In the circumstances, the Respondent took the decision to follow a competitive interview process. Both the Claimant and her junior colleague applied for the lead role.
The Claimant, by all accounts, performed poorly during the interview process. She had been off for a substantial amount of time and was not au fait with the current challenges of the role. The interviewer recognised the Claimant should have done much better and tried to prompt her on several occasions, to little avail. The junior colleague was offered the position. The Claimant was offered the more junior role (equivalent to her pre-2012 position).
The Respondent claimed that the big gap in scores between the applicants justified further their decision to effectively demote the Claimant. By contrast, the tribunal saw this large gap, which appeared inconsistent with both employees’ respective work history, as further evidence that the competitive interview process had placed the Claimant, given her situation, at a substantial disadvantage. As such it was more evidence of the unfairness of the situation, not less.
The Claimant refused the junior role offered in the summer of 2018. Thus started a saga of appeals, multiple grievances, grievance appeals, and ultimately the Claimant’s dismissal on redundancy grounds in April 2021.
The Claimant raised several claims against 3 Respondents (the local authority and 2 Respondents in person), for harassment, victimisation, direct and indirect disability discrimination, discrimination arising out of a disability, unfair dismissal.
The claims of harassment and victimisation did not succeed. Nor did the claims against individual Respondents. Those will not be explored further. Below is a summary of what the Tribunal found on the key claims against the main Respondent.
The main basis for the claim was the appointment of a less capable individual over the Claimant, along with the choice of a competitive interview process and the Claimant’s ultimate dismissal.
The Tribunal had to consider whether a suitable hypothetical comparator sharing key characteristics with the Claimant (but not the disability) would have been treated differently. The Tribunal determined that another employee, who would have been off work for the same length of time but for different reasons, would have faced the same treatment.
As such that claim failed.
Discrimination arising from a disability
The Claimant had been off work due to her disability. The Respondent would not have opted for a competitive interview process had the Claimant not been absent for that long; the lead role would have been ring-fenced for her. As such, requiring her to reapply and be interviewed for her role was seen as due to her disability as well. This constituted unfavourable treatment.
Was it a proportionate means of achieving a legitimate aim? No. She was the most appropriate candidate for the role, the role should have been ring-fenced. Alternatively, substantial adjustments should have been considered. The interview process placed the Claimant at a significant disadvantage due to her long-term absence and the impact the treatment had had on her. The Respondent should have used an alternative selection process. Both employees had long employment history with the Respondent, from which relevant data regarding skills, experience, commitment, could have been gathered and used to appropriate rate the individuals.
That claim succeeded.
Duty to make reasonable adjustments
In the main the Tribunal found that the Respondent had failed to make reasonable adjustments to the competitive interview process the Claimant was put through and those actions were unreasonable.
The PCP (the provision criteria or practice) was the requirement to have a competitive interview when applying for an internal role. It was applied across the board but clearly placed individuals with a disability, such as the Claimant, at a disadvantage, which the Respondent knew or should have known. There were reasonable steps that could have been taken to avoid the disadvantage, such as using an alternative selection process.
That claim succeeded.
A finding of unfair dismissal does not automatically follow from a successful discrimination claim.
The Claimant was dismissed on redundancy grounds. The Tribunal found that the requirement for employees to carry out work of a particular kind had not ceased or diminished. The new lead role was substantially the same as the Claimant’s existing role prior to the restructure. As such there was no redundancy situation and the dismissal was unfair.
In the alternative the Tribunal also held that dismissing the Claimant would not have been a reasonable decision in any event, given the Respondent’s failure to make reasonable adjustments to the process, as outlined above.
That claim succeeded.
What do we learn from this?
The whole dispute spanned from 2018 to the end of 2021, when the Tribunal reached its decision. This would have cost the Respondent a great deal in time and management resources, as well as legal fees. The hearing was scheduled for 15 days. The bundle was near enough 2000 pages. The written judgement from the panel goes for just under 100 pages.
The stress levels of everyone involved, including the Claimant, who had been recently battling cancer, would have been immensurable. The Claimant would have been able to return to work in 2019 following her cancer treatment but remained off sick due to the immense stress of the ongoing internal process.
Such a public judgment would also have done the reputation of the Local Authority no favour.
Without considering the actual outcome, this claim will have cost much to many of those involved.
It is worth noting that there were also 2 individuals directly named in the claim. Whilst they were not ultimately found liable, it is worth remembering that discrimination claims can, if the circumstances are right, be submitted against individuals directly and personally. That comes with substantial risks for those thus named if the tribunal finds against them.
As part of the claim, many internal emails from the Respondent found their way into the bundle prepared for the tribunal hearing. Some more “problematic” than others. It is worth remembering this; if you do not feel comfortable having the email you are drafting being disclosed publicly, it may not be sensible to send it in its current format. Change it or pick up the phone.
And of course; when someone has been off work for a significant period of time due to a disability, putting them through the same process as others may not be the right approach. We need to consider fairness, reasonable adjustments and what exactly is the organisation trying to achieve. Here the local authority felt they were legitimately trying to place the best candidate for their new redesigned role, but in doing so “forgot” that the Claimant had already held that substantial role for 6 years successfully and that the situation would never have been challenged had it not been for her lengthy absence.
Isabelle Shankar, HR Consultant at EML, comments:
“This is an example of a situation where key individuals within the organisation appear to have lost track of what was really important and placed too much emphasis on standardised policies and procedures, without regularly checking that those processes applied fairly to the scenario at hand and were actually aligned with the ultimate goal. Processes should be constantly adapted to ensure our approach remains fair, appropriate, and legitimate, in particular when dealing with vulnerable employees. Had the Respondent truly taken the time to question the need for an interview process or why the Claimant had performed so poorly through it, much of this could have been prevented.
Whilst the Claimant has won her claim, she undoubtedly would have preferred to avoid this process altogether, which would have given a bitter taste to the end of a very long and up to that point successful career with the Respondent”.