Ali Burton was employed by the Crawley branch of fitness chain Nuffield Health. She has a phobia and generalised anxiety disorder (GAD) of coming in to contact with bodily fluids.
Following a number of situations, including her refusal to clear away dirty towels from a gym floor, she left and claimed discrimination. Was she discriminated against?
Ali Burton was employed by the Crawley branch of fitness chain Nuffield Health. She has a phobia and generalised anxiety disorder (GAD) of coming in to contact with bodily fluids. Ms Burton disclosed her mental health condition at the interview stage of her job and to occupational health at an early stage who deemed her fit to work with adjustments. Those modifications were that she was not to do any hygiene related work, exempt from health appointments that required blood tests and was allowed breaks to manage her condition.
A senior general manager who was not aware of Ms Burton’s condition asked her to clear away dirty towels on the gym floor. When Ms Burton refused due to her mental health condition the senior manager told her she could wear gloves. Refusing again, Ms Burton was then pressured by the manager to disclose the details of her condition in a public space, he then mocked her whilst picking up the towels saying, “You can do it like this – it’s good for the deltoids.” The manager also said that there would a further conversation about Ms Burton’s condition as it could “affect her working here”.
After taking a sabbatical over summer, Ms Burton was contacted about returning to work by another manager who sent a rota that did not take into consideration the need for Ms Burton to have reduced hours due to her condition. When Ms Burton questioned this, she was again met with scepticism and asked to explain her condition. At her return to work meeting, the manager asked why Ms Burton would work in a gym with her condition and likened it to someone “having a milk phobia and working in Costa”. She also remarked that she had a member of staff in a wheelchair who did not require “any special treatment”.
Soon after her return to work, Ms Burton was using the gym in her own time and was called in to a meeting with another manager who had appointed himself in charge of certain managerial responsibilities but did not have formal line management status. He alleged that Ms Burton had failed to attend a meeting with him and was going to mark it down as non-attendance on her record even though he did not have the authority to do so. He also asked for Ms Burton’s latest medical diagnosis. Ms Burton was distressed by the meeting and raised a grievance. This grievance was not upheld.
When Ms Burton questioned the outcome of her grievance, management forwarded this on to occupational health asking them to assess Ms Burton’s “attitude and inability to hold conversations with her line managers without turning them into massive negative issues” adding that Ms Burton’s condition made “managing her impossible for the team”. Ms Burton continued to challenge the outcome of her grievance but after it was not upheld, she brought claims for direct discrimination, discrimination arising from disability, harassment, and failure to make reasonable adjustments.
The Tribunal decided that Ms Burton had been unfairly dismissed as she had to repeatedly explain her mental health condition and the adjustments she required to managers, who “exhibited a sceptical attitude or made inappropriate comments”.
It noted that there was a significant lack of understanding of dealing with persons with disabilities and mental health conditions at management level and that the failure to appropriately train managers to deal with these situations was “surprising in an organisation whose purpose is to promote health and wellbeing”. The lack of communication and understanding formed an “ongoing discriminatory state of affairs”.
This case highlights the importance of proper training of managers and employees to deal with disability and mental health conditions. Employers can be held vicariously liable for the actions of their employees, training can help employers create a defence against such liability.
It is also important to note that recent case law has suggested that such training can go stale and will need refreshing. Our team regularly provide in-house training for organisations (which can be delivered remotely via Zoom). Please contact us for further information.
This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.