Veitch Penny LLP - Exeter | Crediton, Devon

Case

Greenhof v Barnsley Metropolitan Borough Council
Employment Appeal Tribunal - (October 2005)

Issues

(1) Disability discrimination
(2) Unfair dismissal
(3) Failure to make reasonable adjustments

Facts

Mr Kevin Greenhof had been employed as a general foreman for the Council and was subsequently promoted to project manager. He had a history of clinical depression and he suffered further stress during his work. Subsequently he went off work for some time. It was whilst he was off sick that he was promoted to project manager. He was asked to give evidence during disciplinary proceedings and this caused a further bout of stress and a further period of absence. When he returned to work the Council suggested that he might like to consider a lesser role of technical support as the Council thought it would be less stressful role for him. Mr Greenhof took the offer to mean that he was demoted and then he could not return to his post of project manager. He later resigned complaining that he had been discriminated against. He bought claims at the Employment Tribunal for unfair dismissal and disability discrimination.

At first instance the Tribunal found he had not been constructively unfairly dismissed but he was successful with his claim of disability discrimination. The Council had been in breach of its duty to make reasonable adjustments for him as a disabled person. It would have been a reasonable adjustment to give Mr Greenhof duties that he could cope with without stress rather than what was in effect, a demotion. Other project managers could have been asked to undertake Mr Greenhof’s work at least for a temporary period until further information about Mr Greenhof’s health was available. However, the Tribunal found that Mr Greenhof was not successful with his unfair dismissal claim because the conduct of the Council was not sufficient to breach the Contract of Employment to a sufficient extent to enable him to leave.

The matter was referred to the Employment Appeal Tribunal. (EAT).

Decision

The EAT allowed the appeal and confirmed that Mr Greenhof had been unfairly dismissed. The Tribunal should have found that the Council’s conduct in respect of their obligations under the Disability Discrimination Act was sufficient to allow Mr Greenhof to consider himself as constructively dismissed. The Council should have consulted with him and sought further medical evidence to establish what he could do as a project manager without having to give him the lesser role, instead of proposing the alternative role.

Comments

This case demonstrates the importance of consultation with an employee who is on sick leave and may be disabled for the purposes of the Disability Discrimination Act. Relevant medical evidence must be obtained before any decisions are made. It is important not to jump to conclusions about someone’s health and their abilities. The Council in this case felt it was acting sympathetically by proposing a reduced less stressful role, but failed to take into account the information from the employee’s doctor and the Council’s own Occupational Health Department with regard to any steps which could be taken to retain him within the position for which he had been employed.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
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This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.