Case study: Disability discrimination
We often write about case studies from the media. This time, we’re sharing the story of what we managed to achieve for one of our own clients.
Shelly McAuley was recently awarded £32,000 which included £21,000 for injury to feelings. This is because, in October 2023, we made a successful claim on her behalf, of disability discrimination and unfair dismissal.
Shelly’s story
Shelly McAuley worked at Canterbury Christ Church University, which has approximately 15,000 undergraduate / postgraduate students and 1,800 staff.
Shelly joined as an Administrative Officer in 1997. She soon became Deputy Director of the International office and eventually progressed through a number of roles, before becoming Faculty Manager of Business Operations within the Faculty of Education in June 2018.
In Spring 2019, the Faculty where she worked was restructured to merge with the Faculty of Arts and Humanities.
Shelly’s role became more challenging with a heavy workload, which put her under significant stress.
As part of the restructure, the total of five Faculty Managers was to be reduced to three. A shortlist was drawn up for each role.
Shelly applied for two of the jobs. For one of them, there were two people who applied alongside her. The other applicants were interviewed online, and were scored against certain criteria. But Shelly was too ill at the time to attend an interview – and she didn’t get the job.
She was up against one other applicant for the other opportunity. But the concerns about her state of health were copied across from the other application, and she didn’t get that job either.
As a result, Shelly’s role was made redundant in August 2020.
Disability
She suffered from depression and General Anxiety Disorder which counts as a ‘disability’ under the Equality Act 2010.
As is common with such conditions, Shelly’s symptoms varied from time to time. Between periods of good health, she took various chunks of sickness absence, in particular:
- About two weeks in August 2014
- Between January and March 2015
- Between January and April 2016
- Between November 2017 and May 2018
During the 2020 redundancy process, Shelly had a mental health breakdown and went on sick leave once again.
During this time, Occupational Health assessments considered her temporarily unfit to work, as well as being too unfit to attend interviews for the internal posts.
Longer term, a psychiatrist said she had a good chance of making a full recovery by the end of 2020, phased over six months, which meant she wouldn’t be eligible for ill-health retirement.
Tribunal findings
The University’s redundancy process was conducted online during the early phases of the Covid-19 lockdown, when they (like other employers) had not yet set up new remote systems and processes.
However, they didn’t keep sufficient records – and should have known better.
For example, the interview process should have been objective. For Shelly, it was based on subjective opinion, as her applications didn’t go through the same scoring and interview process as the two colleagues who got the jobs she wanted.
Under redundancy law, an employer has to follow a fair process when dismissing someone. A fair redundancy requires:
- A fair process of warning / consultation with affected employees and any recognised Trade Union
- A fair process of selecting employees to be made redundant
- A fair process of seeking to find alternative employment for any employee at risk of redundancy
That didn’t happen in Shelly’s case.
The Tribunal decided it was potentially fair for the University to dismiss her, but they failed to follow a fair procedure, and she was treated unfavourably. Rather than assess her job applications based on her strengths, skills and knowledge, she was disregarded because of her ill health, and she wasn’t given the chance of a phased return to work.
Under disability discrimination law, a tribunal has to determine:
- Whether the claimant has been treated unfavourably
- The reason for that treatment
- Whether the reason is something arising in consequence of the employee’s disability
- Whether the employer knew, or could reasonably have been expected to know about the disability
- Whether the treatment can be justified by the employer (i.e. whether the employer can show that it was a proportionate means of achieving a legitimate aim)
An employer is legally permitted to consider ill health as part of their redundancy process, but they must be frank with the employee about their decision-making so the employee can respond (for example, by suggesting a phased return to work).
In Shelly’s case, it was clear she was discriminated against due to her disability – and we’re delighted we were able to support her to win compensation.
What this means to you
Looking at the key dates, you can see it can take a long while for the judgement to be obtained, and even longer for the remedy to be decided.
These are legal terms. By ‘judgment’ we mean the decision of the Tribunal judge. By ‘remedy’, we mean the amount of money Shelly was eventually granted.
It takes a while, but that doesn’t mean you can delay it when you want to make a claim, as the deadlines are tight.
Usually, claims to the employment tribunal must be made within three months. For claims to do with redundancy payments or equal pay, it’s usually six months.
For disability discrimination claims, you need to make your claim within 6 months less one day of the act you’re complaining about.
If you lose your job and you’re disabled, you may have a case. Give us a call on 0808 168 7288 for an initial chat – it won’t cost you a penny at this stage. Even if the case proceeds, your employer may have to cover your legal costs.
Related reading
For more information on this subject, you might find it useful to read some of our related articles. These include:
- What is disability discrimination?
- How much money can I get for disability discrimination?
- All you need to know: Disability at your workplace
- An expert guide to your rights with a hidden disability
- I’ve been dismissed and I’m disabled
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