People Management - Employee wins discrimination claim

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Employee wins discrimination claim after manager asked how long ‘this disabled thing’ would go on

A disabled social worker has won discrimination and harassment claims after a poor employee-manager relationship culminated in the claimant being asked how long “this disabled thing” was going to continue.

Patricia Murphy, who has a physical impairment to her feet following an injury, worked for Northumberland County Council from 1999 until her dismissal in 2017 on the grounds of ill-health.

However, a North Shields employment tribunal ruled the council had failed in its duty to make reasonable adjustments, had discriminated against Murphy because of her disability and unfairly dismissed her.

Judge Andrew MacPherson Buchanan said certain managers lacked training on disability despite “clear evidence” such training was needed and that it was evident a poor relationship had developed between Murphy and her line manager.

But the tribunal dismissed another claim of victimisation.

In 2015, the council received complaints which led to Murphy’s suspension. At the time she was working as a social worker. Murphy was also given a written warning and was demoted from team leader to an independent reviewing officer (IRO) – a role that required Murphy to be fully mobile and involved traveling across the county to see children.

Murphy, who had injured her foot back in 2014, had an x-ray taken after her suspension showed nerve damage, and was told surgery was needed to correct the condition.

Murphy went off work in February 2016 for surgery and did not return until November. An occupational health (OH) report in May found Murphy “was not a disabled person” but that “a footrest for under her desk would be helpful”.

On 6 October, Murphy met Karen MacDonald, her line manager, and Amanda Atkinson, HR adviser for the council, and was told she could not return to a team manager role. Murphy said she could not return to a full IRO role but could do some work. The tribunal inferred relations between Murphy, Macdonald and Atkinson were already somewhat strained by that stage.

In November a role had been found for Murphy and it was decided she was to return to work on a phased basis. She attended work on 7 November and had the use of a foot rest which had been provided for her. But she was then absent from work from 23 December 2016 and remain so until 21 August 2017.

During that period, an OH report dated 20 February 2017 found Murphy remained unfit for work.

Also during this absence, MacDonald and Atkinson attempted to meet with Murphy twice in April 2017, but were unsuccessful. On 25 April, Murphy was told there was to be a formal investigation as per the council’s absence management policy (AMP), a formal procedure to consider adjustments for a disabled employee.

The investigating officer met with Murphy on 25 May. Murphy stated she could do a team manager role or similar post, but could not fulfil the duties of an IRO role because of her mobility difficulties. The investigation report concluded Murphy was “currently categorised as having a disability which needs to be taken into consideration” and recommended another AMP meeting.

After the second AMP meeting, Murphy said she would be able to return to work on 14 August. MacDonald and Atkinson found a short-term support role for a phased return to work which would result in a “return to substantive IRO”.

Following that, a meeting took place on 14 August between Murphy, MacDonald and Atkinson where Murphy requested the use of annual leave to extend her phased return to work. This was refused and instead, Murphy was told she was expected back in the IRO role with a full caseload after the fourth week of her phased return – if not she would be dismissed.

During the meeting, MacDonald likened Murphy’s behaviour to “that of an angry, stroppy teenager” and said she felt “like she wanted to poke [Murphy’s] eyes out” because of her behaviour during her first return to work in November 2016. The tribunal heard the meeting gave Murphy “the impression she was a nuisance” to both MacDonald and Atkinson.

Murphy was introduced to her new workplace on 21 August, was given audit work to carry out, which the tribunal found was suitable work for her.

An OH report on 5 September suggested it was beneficial to increase Murphy’s phased return through the use of annual leave. The report added that, at that time, Murphy did not have the capacity to return to her IRO role and that this would likely be the case for the following six months, after which Murphy still might not be able to cope with all aspects of the role.

On 8 September, there was a review meeting between MacDonald and Murphy. During the course of a conversation about her feet, Murphy asked if there were any roles she could move to while her feet improved. MacDonald, in response, indicated towards Murphy’s feet and asked how long “this disabled thing” was going to go on.

During this conversation, MacDonald told Murphy she would be dismissed as that was the way to “open the door to redeployment opportunities” within the council, and at a final AMP meeting on 29 September Murphy was dismissed “on the grounds of ill-health capability in [her] ongoing health”.

Murphy brought claims of disability discrimination, failure to make reasonable adjustments, harassment, victimisation and unfair dismissal to the employment tribunal on 19 December.

The tribunal found the council had failed in its duty to make reasonable adjustments, discriminated against Murphy because of her disability and unfairly dismissed her, but dismissed the victimisation claim.

Judge Buchanan said MacDonald’s remark about feeling like poking Murphy’s eyes out by reason of her behaviour “should never fall from the lips of a senior manager” but were not an act of harassment or discrimination.

“The effect was to violate her dignity or at least to create an intimidating and hostile environment for the claimant,” Buchanan said. “Instead they are indicative of the poor relationship which by then had developed between the claimant and her line manager.”

Andrew Willis, head of legal at HR-inform, said the case is a reminder of the need for professional and appropriate communication between managers and employees – regardless of how frustrating the situation they are dealing with is.

“With disability discrimination tribunal claims notably on the rise, make sure managers have training on being emphatic, holding sensitive conversations and dealing with difficult members of staff,” Willis said. “This can be the difference between an unlimited compensation award and managing the situation in line with best practice and the needs of your business.”

A spokesperson for Northumberland County Council said it is disappointed with the outcome of this case, and that it prides itself on being a "fair and supportive" employer.

“While changes had already been made to our practices prior to the tribunal taking place, we have studied the decision in detail to understand if any lessons can be learned and several management actions have been implemented," they added.

Patricia Murphy could not be reached for comment.

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