In the case of Onigbanjo v London Borough of Croydon 2301468/2016 the Employment Tribunal held that the London Borough of Croydon had failed to make reasonable adjustments for Ms Onigbanjo (in respect of implementing Access to Work recommendations) and had subjected her to pregnancy discrimination (in that they had failed to carry out a pregnancy-specific risk assessment).
The facts in Onigbanjo v London Borough of Croydon
Ms Onigbanjo commenced employment with the London Borough of Croydon (“LBC”) on or about 14 October 2015 as a Newly Qualified Social Worker (“NQSW”). LBC were aware from the start of Ms Onigbanjo’s employment that she suffered from fybromyalgia.
A formal Access to Work workplace assessment took place on 13 Janaury 2016 and a report was prepared dated 14 January 2016. This report referred to “chronic fibromyalgia”, set out a number of the symptoms that Ms Onigbanjo suffered from, and made a number of recommendations to assist Ms Onigbanjo in the workplace. On 20 January 2016 Ms Onigbanjo provided a copy of the report to Ms Tomlinson ([POSITION]) and Ms Tomlinson agreed the next day to provide whatever equipment Ms Onigbanjo needed according to the assessment.
On 20 January 216 Ms Onigbanjo told Ms Tomlinson verbally that she was pregnant. She told Ms Morris, her line manager on 1 February 2016. An occupational health assessment then took place.
On 5 April 2016 there was a meeting between Ms Ongibanjo, Ms Morris, and Ms Tomlinson. In this meeting it was discussed that there was a need to formally assess Ms Ognibanjo’s cases and her work more generally, and that a formal risk assessment would have to be undertaken regarding Ms Ognibanjo’s pregnancy. On 11 April 2016 Ms Ognibanjo and Ms Morris met, and Ms Ognibanjo informed her that she was concerned about a child that she was responsible for “due to his unpredictable violent outburst that put her and her unborn at risk”.
On 18 April 2016 Ms Ognibanjo submitted a formal written grievance complaining, among other things, that the recommendations made in the Access to Work report three months earlier had not been implemented and, further, that a pregnancy-specific risk assessment had not been carried out.
There were significant delays in obtaining the equipment relevant to the Access to Work report, and pieces of the equipment had not arrived by the time that Ms Ognibanjo attended work for a full workstation assessment on 7 June 2016. She again complained on that day that the relevant equipment had not yet arrived and that a pregnancy-specific risk assessment had not yet taken place.
On 13 June 2016 Ms Morris completed a generic risk assessment form. This was not specific to Ms Ognibanjo’s pregnancy and on 16 June 2016 Ms Ognibanjo suggested a number of amendments to it, which were accepted by Ms Morris.
Ms Ognibanjo’s maternity leave commenced in July 2016, by which time all of the equipment relevant to the Access to Work report had still not arrived.
Ms Ognibanjo subsequently made claims under section 20 (failure to make reasonable adjustments) and section 18 (pregnancy and maternity discrimination) of the Equality Act 2010.
The decision of the Employment Tribunal in Onigbanjo v London Borough of Croydon
The Tribunal upheld Ms Ognibanjo’s claims in part.
Failure to make reasonable adjustments (section 20 Equality Act 2010)
Ms Ognibanjo put forward six allegations of failure to make reasonable adjustments, as follows:
- A failure to implement recommendations made in an Access to Work report by March 2016;
- A failure to refer her to Occupational Health promptly for an assessment;
- A failure to carry out a risk assessment;
- Agreed and document flexible/altered working hours should have been agreed;
- A designated working station should have been provided; and
- Her caseload should have been adjusted to manage long distance travelling and long working hours
The Tribunal upheld Ms Ognibanjo’s claim in respect of the failure to implement the recommendations made in the Access to Work report. The other allegations were dismissed.
Pregnancy and maternity discrimination (section 18 Equality Act 2010)
Ms Ognibanjo again put forward six allegations of pregnancy and maternity discrimination, as follows:
- A failure to carry out a pregnancy-specific risk assessment within a reasonable time
- A failure to adjust her work duties in line with GP advice
- A failure to move her to office-based work to avoid travelling and the risk of working with violent children
- A failure to provide a suitable office environment from 16 June 2016
- A failure to implement a phased return to work
- The events that occurred during the hearing on 8 April 2016
The Tribunal upheld Ms Ognibanjo’s claim in respect of the allegation that LBC had failed to carry out a pregnancy-specific risk assessment with a reasonable time. The Tribunal held that, following O’Neill v Buckinghamshire County Council ( IRLR 384, EAT), LBC were aware that she was pregnant, her work was of a nature that could involve harm or danger to the health and safety of a new or expectant mother, and that the risk arose from work processes or conditions.
Our solicitors’ view on Onigbanjo v London Borough of Croydon
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that all reasonably practicable steps are taken to protect employees’ health and safety in the workplace – a failure to do so could not only render employers liable to personal injury claims but, potentially, as in this case, also expose them to discrimination claims”.
The judgment of the Employment Tribunal can be found here.