No matter what shape or form a disability may take, employers are always required to take them seriously. An Employment Tribunal (ET) made that point in the case of a teaching assistant who suffered from a severe phobia of coming into contact with other people’s bodily fluids (A v B).
The woman made no secret of her phobia, which her employer was fully aware of and which was agreed to be a disability. She became anxious after learning that a disabled pupil who required intimate care, including nappy changing, was to arrive at the school. She was, however, informed that she was obliged to provide such care under the terms of her employment contract.
She felt ostracised and bullied by her colleagues because she was not prepared to perform intimate care and, following a staff meeting, she was signed off sick. Her emotional reaction was such that she suffered panic attacks and vomiting and never returned to the school. She ultimately resigned and launched ET proceedings.
In upholding her disability discrimination claim, the ET found that the employer had failed in its duty to make reasonable adjustments to cater for her disability. She was under no clear contractual obligation to provide intimate care and the employer could have taken the practicable and entirely effective step of permitting her to return to work whilst excusing her from any jobs that might expose her to bodily fluids. There was no consideration given to making such an adjustment and the employer had acted with a closed mind.
In also ruling that she was constructively unfairly dismissed, the ET noted, amongst other things, an inexplicable and unconscionable delay in obtaining an occupational health report. After going on sick leave, she was left in limbo at home for long periods without any adequate human resources support or contact. The employer was in fundamental breach of her contract in that her treatment undermined the trust and confidence that should exist in any employment relationship. If not agreed, the amount of her compensation would be assessed at a further hearing.
Healys LLP Employment team are experienced in handling claims involving disability discrimination. For more legal advice regarding Employment Law and discrimination claims, please don’t hesitate to contact us today.