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In the case of Carrabyne v Department for Work and Pensions ET/2401990/2016 the Employment Tribunal held that Mrs Carrabyne had been discriminated against by the Department for Work and Pensions (“DWP”) when she was dismissed for an absence unrelated to her disabilities, awarding her over £110,000 in compensation.

The facts in Carrabyne v Department for Work and Pensions

Mrs Carrabyne, who has a hip problem and suffers from depression, commenced employment with the DWP in July 2012. She worked in a team of 15 people at the Belle Valley Department of the DWP, and her line manager was Mr Woodward.

During Mrs Carrabyne’s employment the DWP made a number of adjustments to the workplace to compensate for Mrs Carrabyne’s disabilities, including the use of specialist workstation equipment, a specialist chair, and increased consideration points in relation to the department’s trigger points (Mrs Carrabyne had six days’ additional to the standard eight days’s allowed absence in a rolling 12 month period, equating to an allowed total of 14 days’ absence in any 12 month rolling period).

Mrs Carrabyne had the following periods of absence from work:

  • 2 April 2014 to 24 June 2014: absence due to a hip operation
  • 29 January 2015: one days’ absence due to her hip
  • 30 January 2015: absence due to a steroid injection (which did not count towards her period of absences)
  • 7 April 2015 to 13 July 2015: absence due to her depression
  • 4 January 2016 to 8 January 2016: gastric flu

Ms Carradyne was given a first written warning on 12  January 2015 with a review period that ended on 9 August 2015. Ms Carradyne appealed this but the appeal was not upheld.

An Occupation Health report was produced on 25 January 2016. This confirmed that Mrs Carrabyne had a longstanding history of depression which was well-maintained with medication, and that she had daily hip pain which limited her mobility.

Mrs Carraydne was then given a final written warning on 28 July 2015 with a review period which ended on 27 January 2016.

After Mrs Carradyne’s absence in January 2016 Mr Woodward referred Mrs Carradyne’s matter to Mrs Bennett for a decision, saying that her absence record was unsustainable and that there was no evidence of sustained improvement in her overall absence, particularly given that she was on her final written warning review period.  Although Mrs Bennett deemed Mrs Carrabyne’s absence to be genuine she decided that Mrs Carrabyne should be dismissed, as her opinion was that Mrs Carrabyne had not shown an improvement in her attendance in the last review period and she was not convinced that a sustained improvement could be achieved in the future. Mrs Carrabyne appealed the decision but her appeal was rejected.

Mrs Carradyne brought claims in the Employment Tribunal for discrimination arising from disability, a failure to make reasonable adjustments, and unfair dismissal.

 

The decision of the Employment Tribunal in Carrabyne v Department for Work and Pensions

The Employment Tribunal upheld Mrs Carrabyne’s claims for  discrimination arising from disability (section 15 Equality Act 2010), failure to make reasonable adjustments (section 20 Equality Act 2010), and unfair dismissal.

Discrimination arising from disability

The DWP accepted that it’s dismissal of Mrs Carrabyne was unfavourable treatment because of something arising in consequence of her disability. The Tribunal held that her dismissal was not a proportionate means of achieving a legitimate aim and that her dismissal was therefore discriminatory: the Tribunal’s decision on this point was influenced by the fact that the DWP had failed to put forward any evidence that Mrs Carrabyne’s absence had a significant impact on her department.

An analysis of the law relating to discrimination arising from disability can be found here.

Failure to make reasonable adjustments

The Employment Tribunal held that the DWP had failed to make reasonable adjustments in relation to Mrs Carradyne’s dismissal by: 1) discounting the disability-related absences in relation to the DWP’s absence policy; or 2) extending the DWP’s absence policy trigger points. The Tribunal held that these adjustments would have been reasonable and that the cost to discount Mrs Carrabyne’s absences would have been nil.

An analysis of the law relating to failure to make reasonable adjustments can be found here.

Unfair dismissal

The Employment Tribunal held that the DWP was a large organisation with access to large resources. The Tribunal found that the reason for the dismissal was a potentially fair reason (capability) but that it did not act reasonably in treating the circumstances as as sufficient reason for dismissal.

An analysis of the law relating to unfair dismissal can be found here.

Remedy

The Employment Tribunal made the followings to Mrs Carrabyne:

  1. Basic Award: £1,107.69
  2. Loss of statutory rights: £738.46
  3. Past loss of earnings: £22,548.41 (with interest of 8% to be added)
  4. Future loss of earnings: £35,611.56
  5. Injury to feelings: £18,700 (with interest of 8% to be added)

The Tribunal also ordered that the DWP pay a sum of £17,814 in respect of the cost of Mr Carrabyne obtaining a degree from the Open University and that 36 months’ employers’ pension contributions be paid to her (together with interest on such).

The total award made to Mrs Carrabyne by the Employment Tribunal amounted to £110,165.

 

Our solicitors’ view on Carrabyne v Department for Work and Pensions

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “If employers are aware (or reasonably should be aware) that an employee is disabled then they should take care to ensure whether any adjustments can be made in the workplace (whether relating to absences or otherwise); a failure to do so may result in the employer discriminating against the employee.”

The judgment of the Employment Tribunal on liability can be found here and the judgment on remedy can be found here.

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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