A recent decision by the Central London Employment Tribunal serves as a reminder to employers of the importance of ensuring an employee with a disability is treated in a fair and consistent manner to minimise the risk of a successful claim for disability discrimination.
This case involved Ms Coghlan who was employed by The Hideaway Club (UK) Limited as a Personal Assistant to their Chief Executive Officer, Mrs Dhawan-Leach. A year or so after her employment commenced she was diagnosed with breast cancer. Whilst her employer was initially very supportive of her, allowing her to take time off work to attend medical appointments and to work in another office or flexibly from home when she was unwell, over time her employer’s attitude changed. She was required to take sick leave or reduced pay to attend medical appointments, asked to produce medical correspondence confirming she was fit to attend work, and Mrs Dhawan-Leach claimed she had not done a single day’s work since her diagnosis some three months before.
In an email to the employer’s HR Consultant, Mrs Dhawan-Leach said was that she was not willing to “compromise everything just so I can be kind and sensitive to one individual who is very unfortunately going through an extremely difficult personal health situation.”
Matters came to a head a few days before Ms Coghlan was due to undergo surgery. Ms Dhawan-Leach informed her that, as she refused to take sick leave, Ms Coghlan was to be “treated as normal” but described her as “unfit to work.” Subsequently, Ms Coghlan left the office in a distressed state and was signed off work with stress until she took the decision to resign the following month as she felt unable to return.
She pursued a number of claims through the Employment Tribunal and succeeded in her disability discrimination and harassment claims. The Employment Tribunal Judge described Mrs Dhawan-Leach as a “demanding manager” and concluded that the requests for medical letters from Ms Coghlan “violated her dignity” and the requirement to take sick leave to attend a medical appointment was “irrational.” Ms Coghlan was awarded £47,700.
This case resonates with me in particular as I have had a number of clients over the years who have, much the same as Mrs Dhawan-Leach, initially been extremely supportive of an employee diagnosed with such a condition. However, as time passes and the employer has to manage the absence of the employee and bear the costs associated with this, it takes its toll. More often than not, their patience and sympathy erode away. To an employer, a matter of months can be a long time to deal with such a situation and significantly impacts on their organisation. However, when an employee is diagnosed with such a condition it is important to ensure that they are dealt with in a fair and consistent manner and that this is not short lived, as demonstrated in this case.
It is also worthwhile highlighting the email the employer sent to their HR Consultant which was used in evdience at the Tribunal. As many of you may be aware, correspondence between a professional legal representative (i.e. a solicitor, barrister or advocate) and a client falls within legal professional privilege and is protected from disclosure unless the client agrees for it to be. There is a common misconception that this also applies to HR Consultants but it does not. This distinction can be really important, in particular where there are litigation proceedings.
