In the case of Mr G Williams v British Telecommunications PLC ET/2400205/2019 the Employment Tribunal held that Mr Williams had been discriminated against and unfairly dismissed after he was dismissed due to a number of illness-related absences.
The facts in Mr G Williams v British Telecommunications PLC
Mr G Williams (“the Claimant”) was employed on a permanent contract with British Telecoms PLC (“the Respondent”) from November 2010. He worked in their call centre tasked with the job of preventing customers from leaving the service offered by the Respondent until he was dismissed on 20 September 2018.
During his employment the Claimant had periods of intermittent sickness of half a day to three days from August 2011 until a substantive period of long-term sickness which began on 3 July 2018. The intermittent absences from 2012 onwards were for a variety of reasons including diarrhoea, nausea and vomiting, headache and migraine; the latter absences from February 2018 were for reasons of “tiredness and stress”. The longest absence period, which began on 3 July 2018, was for stress and anxiety.
The Respondent’s attendance procedure involved an initial formal warning issued by a line manager, then of necessary moving to a final warning issued by a line manager, and finally to a third decision stage conducted by a second line manager. The outcome of the decision stage could be dismissal (with a right to appeal heard by a third line manager). In the policy, half-day absences could be included within the calculation used for attendance management. In addition, the Respondent also operated a stress assessment policy called “STREAM”. As part of this process, if an employee was off work with stress related sickness absence, they were given a chance to complete a STREAM questionnaire on their return. The purpose of the questionnaire was to assist the respondent with managing the employee’s stress at work.
After a series of attendance management meetings the Claimant was issued with a final written warning on 21 April 2017, and on 25 April 2017 the Claimant was dismissed. The Claimant appealed against his dismissal and on 6 June 2017 he was reinstated to his employment, as the Claimant had been seen to have made steps to deal with his migraines and prevent further absences. However, the Claimant was informed by the Respondent that he would remain at the final warning stage of the attendance process backdated to the date of his dismissal which would run for 12 months (so until 21 April 2018). The Claimant returned to work on 12 June 2017.
The Claimant had further absences from work from 22 February 2018 as follows:
- 22 February 2018: for one day with tiredness and stress;
- 2 March 2018: for half a day again with tiredness and stress
- 12 March 2018: for half a day with toothache.
The Claimant was invited to a second line manager review to discuss his absence. and this meeting took place on 28 March 2018. The Claimant at this meeting described having difficulties sleeping and that he was taking medication, and the Claimant was informed by the manager that further absences could result in further sanctions.
The Claimant had further periods of absence as follows:
- April 2018: one day for depression
- 7 June 2018: a half-day due to a migraine
- 30 June 2018: the Claimant took an overdose and had to go to hospital;
- 3 July 2018: the Claimant went to his GP and admitted to substance abuse over the previous 12 months. The Claimant was signed off sick from work for stress/anxiety and he was then referred to the Respondent’s counselling service, Pathways
On 26 July 2018 the Claimant admitted to a problem with substance abuse at an absence review meeting.
At the second review meeting in August 2018 the Claimant disclosed to the Respondent that he had started to take cocaine and had had an overdose on 30 June 2018. The Claimant was accused at the meeting of failing to attend Pathway counselling sessions due to visiting his mum in Spain, which the Claimant denied. He argued he felt unable to attend work as this would trigger his substance misuse and he did not want to suffer a relapse. The Claimant was warned that as the meeting was a second line manager review meeting and, if there was no imminent return to work , the matter would move to a decision stage. Later on the same day the Claimant attended with Occupational Health (OH) on the same date, who advised that the Claimant was suffering from stress-related substance abuse which had worsened, and advised a return to work should be deferred for a period of 4-6 weeks to help with recovery. The view of OH at that point was a return to work too soon would be counterproductive.
A decision meeting was held on 19 September 2018 where there was further discussion over the Claimant’s take-up of treatment provided by Pathways, with both parties disagreeing on who was responsible for delays in the start of the treatment. The Claimant stated at the meeting he was aiming to return to work on 24 September 2018, and he offered to return to work two weeks before the period advised by the OH. When asked about not seeking help to deal with his substance misuse problem at the time he was dismissed, he responded he did not want to admit he was struggling, and only when he suffered the overdose did he realise that he had a problem.
On 20 September 2018 the Claimant was informed by the Respondent that his employment would be terminated, with the termination to take effect as of 22 September 2018. The reasons given for the dismissal were:
- Additional work that the Claimant had caused his colleagues by his absence;
- The Claimant’s failure to meet his objectives; and
- The Claimant’s current and previous attendance history
The Claimant appealed against his dismissal on 24 September 2018. His grounds of appeal were that:
- His attendance had in fact improved since seeking help;
- He had not delayed attending Pathways;
- He had not delayed recovery by taking a 3.5 week holiday; and
- The Respondent had misunderstood the substance abuse, and that they had failed to financially balance the claimant’s performance with the impact on the business.
On a more procedural point, the Claimant’s trade union representative queried why he had been subject to a second line review meeting in March, and argued that it was early in the process; he further argued that the criteria had not been met for a second line manager review meeting.
The Claimant was informed on 14 November 2018 that his appeal had been unsuccessful as the Respondent’s view was that the Claimant’s absence was not sustainable for the business. The Respondent accepted that the Claimant had not delayed the Pathways treatment but that this irrelevant as the Respondent was concerned with the Claimant’s attendance pattern and the impact that this had had upon the business. Delaying the return to work by 4-6 weeks was not seen as sustainable and it had been correct for the second line manager review meeting to be held in March.
The decision of the Employment Tribunal
The Employment Tribunal held that the Claimant was a disabled person for the purposes of section 6 of the Equality Act 2010 at the relevant times by virtue of the stress and anxiety that he had been suffering.
The Employment Tribunal further held that:
- The Claimant had been discriminated by the Respondent failing to make reasonable adjustments to account for his disability; and
- The Claimant had been unfairly dismissed
Failure to make reasonable adjustments (section 20 Equality Act 2010)
The Tribunal upheld the failure to make reasonable adjustments claim under section 20 Equality Act 2010, holding that it would have been a reasonable adjustment for:
- The Respondent to allow the Claimant to remain in employment whilst he recovered and improved his attendance at work. A key factor in this decision was that the Respondent had commissioned advice from an Occupational Health therapist but that they had subsequently completely ignored that advice – the Tribunal found that the inference could be drawn from this conduct that the Respondent’s view of the Claimant was that he was unreliable and her mind was ‘closed’ to any adjustments which could have allowed the Claimant to remain in the workplace; and
- The Respondent should have allowed the Claimant to return to work in the 4-6 week period with a four-week phased return to work
The Employment Tribunal found that the Respondent did not act reasonably in dismissing the Claimant as:
- The attendance policy lacked transparency; and
- Neither the dismissing manager nor the appeals manager could justify why the Claimant’s attendance was unacceptable
Our lawyers’ views on the case of Mr G Williams v British Telecommunications PLC
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case as follows: “Employers should ensure that they consider any adjustments reasonable to account for an employee’s disability, as a failure to do so – even where there have been multiple absences from work and an extended attendance management procedure put in place – could result in a successful Employment Tribunal claim.”
The decision of the Employment Tribunal in Mr G Williams v British Telecommunications PLC ET/2400205/2019 can be found here.