In the case of Marsden v Department for Work and Pensions ET/2405365/2018 the Employment Tribunal awarded the Claimant almost £70,000 in compensation after finding that she had been subjected to disability discrimination by her employer.
The facts in Mrs J Marsden v Department for Work and Pensions
The Employment Tribunal (ET) had already found in favour of the employee on liability on 17 October 2019 based on the facts in her claim regarding disability discrimination and failure to make reasonable adjustments (please see liability judgment here). This ET hearing was to discuss the appropriate compensation to be awarded.
Mrs J Marsden [the “Claimant] was employed by the Department of Work and Pensions (DWP) [the “Respondent”] as an Administrative Officer (AO). She had suffered from psychiatric damage over the years in varying degrees, from more moderate levels in the form of lowering of mood, to a more serious worsening degree between 2017 and 2018.
The claimant was absent from work due to depression and anxiety from 12 June 2018 until July 2019. She went onto half pay in January 2019 and nil pay in June 2019. She took annual leave, at the suggestion of her manager at the time, in order to mitigate the effects of loss of income. The Claimant had applied for promotion unsuccessfully in 2012 to the next grade, Executive Officer (EO), which was later described by a specialist clinician as an “index incident” triggering her downward spiral into greater anxiety and depression.
In an Occupational Health Report dated 10 September 2018 the Claimant was described as experiencing symptoms of increased heart rate, feeling panicky, difficulty breathing, feeling fearful, having poor concentration and not wanting to interact with other people. The report expressed the view that she was unfit for work and likely to remain unfit for work whilst the perceived work-related issues continued. The Claimant however, feeling fearful she may be dismissed, returned to work during her period of certified absence in July 2019 despite having fit note from 21 June 2019. It transpired she had received an email from the Respondent dated 11 June 2019 informing her a decision had been made to refer her to a Decision Maker for unsatisfactory attendance, as to whether her absence could “continue to be supported or whether her absence could continue to be supported or whether dismissal or downgrading is an option”. The Claimant at this time was awaiting a hearing at the ET.
In the Employment Tribunal liability hearing the ET found that the Respondent had failed to make reasonable adjustments by not holding a face-to-face meeting between the Claimant and HR between 30 October 2017 and 21 March 2018 on the subject of special pay that could have been due to her as recompense (after the Claimant’s line manager in 2002 had blocked her from applying for promotion opportunities).
The Claimant sought compensation for injury to feelings, personal injury and aggravated damages. She also sought compensation for loss of earnings during a period of sickness absence from 12 June 2018 until July 2019, compensation for the cost of treatment by a consultant clinical psychologist which had been recommended to aid her recovery, and compensation for the loss of a chance that she would have been made a compensatory payment by the respondent had the discriminatory acts not occurred. The Claimant sought an uplift on compensation due to failure to comply with the ACAS Code of Practice on Discipline and Grievance and interest on the award.
The decision of the Employment Tribunal (ET)
The Employment Tribunal awarded total compensation to the Claimant of £62,381, comprised of the following:
- £31,500 for injury to feelings, personal injury and aggravated damages, including a 25% uplift for unreasonable failure to follow a relevant ACAS Code of Practice plus interest of £6,833 on this award.
- £21,897 for financial loss, including a 25% uplift for unreasonable failure to follow a relevant ACAS Code of Practice plus interest of £2,151 on this award.
Views on the case of Mrs J Marsden v Department for Work and Pensions
Chris Hadrill, Partner in the employment team at Redmans, made the following comment: “This case demonstrates that employers must be careful to assess, at all stages through any internal process, whether any adjustments are acquired for employees (and this is particularly the case where the employer knows or suspects that the employee may be disabled). A failure to make such adjustments can potentially lead to an Employment Tribunal claim.”
The remedy judgment in the case of Marsden v Department for Work and Pensions ET/2405365/2018 can be found here.