In this case the Claimant, Miss Austin (A), had worked as a hospital secretary for the Leeds Teaching Hospital NHS trust for 25 years. A sufferer from disabilities including fibromyalgia, depression and anxiety which impacted on her work and in particular caused her to continually check both her mother’s and her own medical records. The Trust discovered that she was doing this and commenced an investigation which led to a disciplinary process. During this process A was said to have ‘pestered’ her manager and, as a result, she was suspended whilst the investigation progressed. A was ultimately summarily dismissed for gross misconduct and breach of confidentiality.

A successfully claimed for breach of contract, unfair dismissal and discrimination arising from disability. The Tribunal found that the Trust had failed to take into account that A’s actions in checking medical records were caused by her disabilities and that she therefore should not have been found ‘culpable or blameworthy’ for her conduct. In addition, the Trust’s investigation had served to further A’s anxiety. The Tribunal also held that the dismissal was unfair, as it was not a proportionate response by the Trust which was also in breach of contract for a failure to pay notice pay.

A was awarded £269,114 in compensation, a substantial sum given her annual salary of just under £15,000. When determining the award, the Tribunal took into account that A had put significant effort into mitigation (she had applied for over 50 jobs) but that the emotional effects of the discrimination and increased symptoms caused by the dismissal had hindered her in her job search. In addition, A was further impeded by the fact that the Trust did not provide a reference straight away and subsequently reference from the Trust stated that she had been dismissed for gross misconduct. A was also awarded compensation for career long pension loss as well as injury to feelings and personal injury.

Comment: Whilst this case serves as a useful reminder that the possible costs of this type of claim are substantial (even where the claimant’s salary is relatively low), it also highlights the high bar that is set for employers in relation to discrimination claims because of ‘something arising from’ disability. It is no defence for the employer to state that they are unaware of the causal link between a claimant’s disability and the ‘something’ arising from it (in this case the claimant checking her medical records and ‘pestering’ her line manager). Where an employer knows (or could reasonably be expected to know) that an employee has a disability, the onus is on the employer to consider whether an employee’s actions could be caused by that disability. This does not mean that any misconduct arising from a disability should be ignored or waived, but emphasises that employers should consider each situation on its own facts. Employers should be alive to the possibility that the misconduct may have arisen from the disability and that any detriment to the employee as a result of that misconduct could lead to a risk of discrimination.

It is therefore important for employers to take steps to follow up on any concerns raised by staff about health or wellbeing, and to consider obtaining medical reports or referring employees to occupational health. The employer should also subsequently consider whether any reasonable adjustments should be made in respect of the employee’s day-to-day work, or as part of other processes such as a disciplinary process.

Austin v Leeds Teaching Hospitals NHS Trust (2020)

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