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£135,000 for disability discrimination

some co-workers can be bad company,,,,
some co-workers can be bad company,,,,

£135,000 for disability discrimination

A disabled employee, who had been asked to stop breaking wind, has been awarded over £135,000 for disability discrimination, even though the tribunal found that the question itself was not offensive.

Background. 

The claimant had been employed by The Crown Prosecution Service as a senior prosecutor since 2004.  He suffered a heart attack in 2014, following which he was required to take daily medication that had several side effects, including flatulence.

He returned to work in 2015 following a period of sickness absence.  In 2016, he began sharing a small office with another barrister, who noticed the flatulence, and asked “Do you have to do that?”

The claimant shared that his flatulence was a side effect of his daily heart medication.  His colleague then asked him if he could go outside as and when necessary.  He refused the request and complained to his employer, stating that being asked to “stop passing wind” was embarrassing, violated his dignity and was an act of disability discrimination and harassment.

He also complained that he had not been allowed to work from home or leave work at 4pm which would have assisted him to manage his heart related condition, requiring daily medication.

Employee dismissed for poor attendance

He was dismissed in April 2020 after taking another period of sick leave, and he made a claim for disability discrimination and harassment.

Asking him to stop farting in the office was not disability discrimination…

The Tribunal threw out his claims of disability-related harassment and victimisation, finding that his colleague’s questions were not asked with the intention of violating his dignity or to cause offence, and that it was not an unreasonable question to ask when there had been repeated instances of flatulence in a small office.

However, the tribunal found in the claimant’s favour on a number of other issues.

…But failing to make reasonable adjustments was discriminatory

The panel ruled the employer was guilty of disability discrimination for failing to make reasonable adjustments to his working patterns and ignoring recommendations from Occupational Health Advisors.  This meant that the claimant had experienced disability discrimination, hence the sizeable tribunal award.

The key takeaway here is that where an employee requests reasonable adjustments to assist with management of side effects of prescribed medication, the employer should consider the requests, and make adjustments which are reasonable.

Employers may also request that the employee agree to an assessment with an occupational health adviser, to help determine any issues the employee faces, and to make recommendations regarding reasonable adjustments.

Where occupational advice has been obtained however, an employer should think very carefully before disregarding it.

Help and support from myHRdept

myHRdept retained HR (outsourcing) packages all come with support time, some of which can be redeemed against our management and staff training packages (https://www.myhrdept.co.uk/our-services/learning/)

We can train managers and staff, reducing the risk of discrimination claims. Our HRBP and specialist ER team can also help establish effective absence management processes and deal with absence cases, with the support of our retained occupational health provider if necessary.

If you’re thinking of outsourcing your HR, payroll or employment law needs, why not contact myHRdept? Call us on 01628 820515, email us at enquiries@myhrdept.co.uk to discuss your requirements, or contact us via our website and we’ll call you back.

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