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Needs to be done carefully

Published: 20 December 2016
Area of Law: Employment

Care required when suspending an employee

           

In Hampshire County Council v Wyatt, the EAT considered whether an employee has to provide an expert report when bringing a personal injury claim in the employment tribunal. The case also provides food for thought for any employers considering suspending an employee.

Facts

The Claimant worked as a carer for Hampshire County Council.  She was diagnosed as dyslexic in 2008.  In May 2013, serious allegations were made about her work and, following a meeting, she was suspended pending an investigation. The suspension was later lifted and the Claimant was informed that disciplinary proceedings would continue. Meanwhile, she had gone off sick with stress. The Claimant was subsequently dismissed. She brought employment proceedings for unlawful disability discrimination, among other things.

Employment Tribunal Decision

The tribunal rejected the claim that the suspension itself was an unlawful act of discrimination, but held that the suspension meeting was disability discrimination because of the manner in which the suspension was communicated, which it found caused, or materially contributed, to the Claimant's depression. The Tribunal accepted the following:

• There was a failure to make reasonable adjustments at the suspension meeting in that the Council did not explain matters more carefully and slowly. The Claimant did not understand what was happening to her at that meeting and thought she was losing her job because of her dyslexia.

• There was a failure to make reasonable adjustments as the Council failed to explain to the Claimant that it was now dealing with her under the capability procedure rather than the disciplinary procedure, and/or that disciplinary matters had been discontinued. 

• The involvement of a manager in the procedure led the Claimant to believe that dismissal was a possible sanction, and that too was not adjusted for the Claimant.

• There was a failure to offer redeployment when relationships soured between the Claimant and her colleagues, which was a failure to make reasonable adjustments.

• The tribunal accepted that not dismissing the Claimant would have been a reasonable adjustment in the circumstances in light of its later findings.

The employment tribunal awarded the Claimant damages for personal injury. The Council appealed against the award on the basis that the tribunal was wrong to make such an award in the absence of expert medical evidence of her psychiatric injury and its extent.

Employment Appeal Decision

The EAT dismissed the appeal.  It held that, although it is advisable for Claimants to obtain medical evidence of personal injury in such claims, there is no principle of law suggesting that an award cannot be made in the absence of expert medical evidence. The EAT noted, however, that a failure to produce medical evidence risks a lower award than might otherwise be made, or no award being made at all.

What it means for employers?

This case highlights the risk of personal injury claims flowing from the suspension of an employee where there is an underlying disability but also where the impact of the suspension has a detrimental effect on the mental health of the employee concerned. Suspension should never be a knee-jerk reaction and should only be considered where there are good reasons to do so, for example where the continued presence of the employee in the workplace creates a risk. Particular care should be taken when considering whether to suspend a disabled employee and employers should consider carefully whether any adjustments should be made at the suspension meeting. There is also a lesson in taking appropriate time over significant steps like suspension to make sure that the employee understands what is happening and why. If in doubt, legal advice should be sought.

 

 

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