Welcome all to our mid-September case of the week. In our last update we looked at a claim for failing to make reasonable adjustments for a prospective employee. Those that missed it can find it here. This week we look at whether an employee can agree to leave the business and bring a claim for unfair dismissal.

The Claimant in this case, Matthew Riley, is categorised as disabled due to his Autism Spectrum Disorder (ASD), anxiety, and depression. He was employed by Direct Line, the Respondent, as a home claims advisor from 12 March 2012 until 19 September 2018. During his employment he had been enrolled in the company’s private health insurance scheme and opted for an upgrade which provided for support until retirement age.

Between 2014 and 2017 the Claimant was absent from work due to his disability. During this period he was paid at 80% of his salary under a UNUM scheme. On 22 August 2017, a report was made recommending a four stage return to work plan, which included a five month adjustment process before he could receive any phone calls. The report also included a recommendation that other members of staff should receive training for awareness of Asperger’s.

Following the plan, on 3 April 2018, the Claimant starting taking calls on a 12 hours a week basis. Despite the phased return, he contacted his employer to inform them he was suffering from his disability severely and was signed off sick by his GP on 25 May 2019.

The Claimant was called into a meeting with management staff, wherein he was informed that his employment would cease with Direct Line but his payments under the scheme would continue. The only question from the Claimant was whether this would bring him to state pension age, which it was agreed would be investigated by the company’s HR department. Later on in the meeting the Claimant stated: ‘I know really this is where it’s been heading for the last four years. This ties it all up as I do not have to think about how I am going to get back into work and what a phased back to work will look like and when I am going to be able to come to work and the hours’. The Tribunal, rejecting evidence that the Claimant did not understand what he was being told, found that the meeting was supportive and had the purpose of helping him decide on his plans in the future. The plan to cease employment was followed up in an email which had a positive response from the Claimant the same day.

He was dismissed on 19 September 2018 on the grounds of capability. The Claimant brought claims of unfair dismissal on 12 November 2018. The Respondent argued that his employment had ended on the grounds of mutual agreement. The Tribunal ordered that any questions in cross examination were to be written down and provided to the Claimant as a reasonable adjustment.

Despite the initial orders for reasonable adjustment, the Claimant was not provided with written questions during his cross examination during the 6 day hearing. Previous case law states that failing to make reasonable adjustments for disabled clients can, if this renders the hearing substantively unfair, be grounds for appeal. It was agreed between the Claimant and the panel that any straightforward questions could be asked verbally, but more complex questions may have to be written down to ensure understanding.

The Claimant lost his initial claim in the Employment Tribunal and, on the grounds of the ET failing to make reasonable adjustments, brought an appeal.

The Claimant argued that, despite the agreement that some questions can be presented orally only, the Tribunal was bound by the decision for all questions to be written down and that this was grounds for an appeal as the process had been flawed. The Employment Appeal Tribunal disagreed, however. Their finding was that the ET acted completely reasonably by trusting the Claimant’s own views on his abilities and needs. They were also not convinced that, given the circumstances of the case, that the issue would caused substantive unfairness as a consequence.

This is not to say that the Claimant’s case failed in its entirety. The ET found and the EAT agreed that the Respondent had failed its duty to make reasonable adjustments by failing to provide noise cancelling headphones and no management training for his disability. However, given that the Claimant was found to have been unfit for work shortly afterwards it was found that this had no impact on the decisions surrounding his termination.

The Takeaway Points

This is a good insight for both sides into how a Tribunal will assess a failure to make reasonable adjustments. For an employee, a failure to make reasonable adjustments may not be enough on its own to warrant a claim, should the circumstances show that it had no impact on your work or decision making.

From an employer’s perspective we can see how ensuring understanding of an issue with members of staff with protected characteristics can be vital to prevent claims occurring in the future. In this case the reasonable adjustments were not made and had no material impact on the outcome, but this should not be taken as permission to ignore reasonable adjustments for employees!