Hello and welcome back to your weekly case law update. Last week’s newsletter examined the impact of leaving the E.U on HR and explained new Gender Pay Gap Reporting developments. This week’s case concerns bullying, grievance investigations and disability discrimination.
The question today:
Can a failure to properly investigate a grievance amount to failure to make reasonable adjustments?
Ms Lamb, the Claimant, was a primary school teacher for The Business Park Academy Bexley, the Respondent. Following some performance issues and incidents of bullying the Claimant began a period of sickness absence and made a complaint to the Respondent about bullying. Her doctor’s note stated she was depressed due to the bullying she received.
Following some clear the air talks a miscommunication involving how the grievance should progress meant the Claimant was asked to resubmit her grievance in writing. The Claimant believed her previous complaint was sufficient grounds to investigate and this triggered another period of absence due to depression and PTSD.
The Respondent appointed a new HR manager to handle the issue and he wrote to the Claimant asking for her thoughts on the previous investigation before proceeding to reinvestigate the issue. The Claimant was dismayed at the prospect of further investigation as she wished for the matter to be resolved. At this point Occupational Health diagnosed her with resolving reactive depression which she would not recover from until the grievance had been concluded.
The Respondent rejected the grievance citing the Claimant’s performance being the operative cause of the perceived bullying. The Claimant appealed believing the evidence had not been properly examined but, following a further delay in investigations, this was also rejected. By this point it had been over 15 months since her initial complaint of bullying.
The Claimant was dismissed and tribunal proceedings ensued. The Claimant alleged that her grievance had not been fairly or properly investigated which meant she was unable to return to a safe and discrimination free environment, which amounted to a failure to make reasonable adjustments.
The ET rejected the claim, stating that the Respondent’s decision to reject the grievance was a one off decision and the Claimant should have returned to work. The Claimant appealed and the EAT allowed the appeal. It held that had the issue been dealt with promptly and adequately there is every chance the Claimant could have returned to work, furthermore, this delay exacerbated her disability which made it difficult for her to return. The claim was remitted back to a different tribunal to be reheard.
The takeaway points:
Yes, failing to properly investigate a grievance can amount to a failure to make reasonable adjustments. In this case the delays and miscommunication, coupled with the Claimant’s bullying related disability, meant the grievance procedure put the Claimant at a disadvantage which was potentially discriminatory.
Some readers might have noted that the grievance was eventually resolved, albeit with a decision that the Claimant was not satisfied with. The Tribunal indicated that whilst the Claimant in this case was hoping for a different outcome a reasonable investigation should be prompt therefore the dismissal may have been fair if the response to the grievance had been swifter.
This case is a prime example of having an effective bullying and harassment policy and also a clear grievance investigation procedure. If you enjoyed this post please forward it on, or, read more on disability discrimination or bullying and harassment.