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In the case of Nally v Freshfield Care Ltd ET/2401774/14 the Employment Tribunal held that the employer had discriminated against the employee when he was dismissed for outbursts caused by his PTSD.

Mr Nally was employed by Freshfield Care Ltd (“Freshfield”), a care home operator, as a care worker. About 18 months into his period of employment with the company Mr Nally told a resident with dementia to “shut up”. Mr Nally was called to a meeting with the deputy manager and informed her that he had post-traumatic stress disorder (“PTSD”), that he had been experiencing stress and anxiety issues, and that he was receiving counselling. The deputy manager informed Mr Nally that he should provide her with his doctor’s details so that a medical report could be obtained, but no medical report was in fact obtained. Mr Nally was also told that his performance would be monitored for two weeks as a result of his outburst.

Shortly after the meeting with the deputy manager, Mr Nally had an argument with a colleague. As a result of this argument Mr Nally was dismissed, after a meeting with his manager and the deputy manager.

Mr Nally brought claims for direct discrimination, discrimination arising from disability, and failure to make reasonable adjustments. He was adjudged during the course of proceedings to be disabled for the purposes of the Equality Act 2010.

The Employment Tribunal rejected Mr Nally’s claims for direct disability discrimination and failure to make reasonable adjustments. In respect of the direct disability discrimination claim the Tribunal on the basis that he had not been less favourably treated than a colleague. In respect of the failure to make reasonable adjustments claim the Tribunal held that Freshfield did not know, and could not have been reasonably expected to know, that Mr Nally’s PTSD would put him at a substantial disadvantage as compared to his non-disabled colleagues.

The Employment Tribunal did, however, uphold Mr Nally’s claim for discrimination arising from disability (section 15 Equality Act 2010). It held that, as a result of the first meeting with the deputy manager, Freshfield was aware that Mr Nally was suffering from PTSD and was aware, or should reasonably have been aware, that at least some of Mr Nally’s behavioural difficulties arose from his condition. Further, the Employment Tribunal held that Freshfield’s actions in the circumstances had not been proportionate: the company could have take other steps than dismissal, particularly given that a medical report had not been obtained at the time of Mr Nally’s dismissal.

Mr Nally was awarded £8,514 in compensation by the Employment Tribunal, comprised of:

  • £6,760 for injury to feelings; and
  • £1,754 in respect of past loss of earnings

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “If an employer is given facts from which they might conclude that an employee is disabled, the employer must be extremely careful in managing the employee and, for example, making decision to dismiss that are fair and in accordance with a legitimate business reason – a failure to make such decisions could potentially mean that a successful discrimination claim is brought against the employer.”

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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