Ms Bannister was employed by The Commissioners for Her Majesty’s Revenue & Customs (HMRC) from April 1990 as an administrative officer. In December 2013, her team was disbanded and she was told that she would have to move desks to a different floor. Ms Bannister became very distressed and called one of the managers to tell them that she was unable to cope with life, she was an alcoholic and that she did not want to move desks due to her mental health condition. Eventually, the manager calmed Ms Bannister down and suggested a slow move, when the office was quiet. Ms Bannister returned to work and apologised for making the desk move a “big thing”.
Following this, an occupational health adviser set out that Ms Bannister had been suffering with anxiety and depression for three years, she was vulnerable to future mental ill-health episodes but that she was determined to work. Ms Bannister went on to have several periods of absence and was signed off work by her GP for alcohol dependence, anxiety and depression. She continued to be signed off until her dismissal.
In April 2015, HMRC decided that Ms Bannister would be moving teams again. Ms Bannister protested that she could not move teams and that the situation was creating mental ill-health episodes. She had severe anxiety being around people that she did not know and a fear of drawing attention to herself. When discussing this with a team leader he said that “he was not aware of issues around previous moves and, to be honest, he had no interest”.
Ms Bannister had continuous contact with HMRC throughout her absence about her return to work and made suggestions on how she would be able to handle the team move. Conversations between the parties became strained with Ms Bannister raising grievances against a manager.
Eventually, a report into Ms Bannister’s absence concluded that she should be dismissed. Ms Bannister appealed but was unsuccessful.
Ms Bannister brought claims for unfair dismissal, a failure to make reasonable adjustments and discrimination arising from a disability. Her unfair dismissal claim was dismissed at a Preliminary Hearing but the discrimination claims proceeded.
The Employment Tribunal allowed each of Ms Bannister’s disability discrimination claims.
The tribunal decided that HMRC failed to make reasonable adjustments for Ms Bannister, which could have included allowing her to work at her old desk for a short period of time while she prepared for the team move. It set out that Ms Bannister had given examples and suggestions of adjustments needed due to her mental ill-health and that she “needed the security of an established routine at the workplace and that any change posed a threat that unsettled her”.
The tribunal considered the requirement to move desks was a provision, criterion or practice that put Ms Bannister at a substantial disadvantage in relation to the desk move when compared with persons who are not disabled. The tribunal rejected HMRC’s argument that there were factors other than the desk move which weighed heavily on Ms Bannister at the time as she had always had extremely good performance reviews and was regarded as a valuable member of the team with her mental health never hindering her before. It was the request to move desks that had caused the issues, the absence and ultimately the dismissal. Consequently, her dismissal constituted unfavourable treatment arising from her disability and could not be justified as a proportionate means of achieving a legitimate aim.
The Tribunal awarded Ms Bannister £75,264.89, including £15,000 for injury to feelings.
Where an employee is disabled under the Equality Act 2010 the duty to make reasonable adjustments will be engaged. However, each case will vary, and to what extent adjustments are reasonable will depend on the facts, including the likelihood that an adjustment will return an employee to work or remove any disadvantage caused. Employers must be minded that mental conditions can amount to a disability in the same way as physical conditions.
The need to deal with mental health in the workplace is becoming increasingly prominent and we reported last week, on Mental Health Day, about the new ACAS guidance on promoting mental health in the workplace. You can read this here.
Generally employers know how to deal with physical ill health at work but lack confidence in dealing with employees with mental health issues. The new ACAS guidance is designed to assist employers in this regard. Through adapting the workplace to promote positive mental health, employers will reduce the severity of conditions and duration of absences.
If you have any questions regarding reasonable adjustments or managing sickness absence or have any other employment law queries, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600.