In Miss S J Austin vs The Leeds Teaching Hospital NHS Trust, a hospital secretary has been found to have been unfairly dismissed and discriminated against on the grounds of disability for repeatedly checking her own medical record. The tribunal found that the Hospital Trust did not take account of the fact that her behaviour arose from her disability. The employee argued that these conditions, especially her anxiety and fibromyalgia caused her to repeatedly check her own medical record and that of her mother on several occasions. She was investigated which caused further anxiety. This anxiety led her to pestering her manager for information about the investigation, resulting in her manager suspending her.
The tribunal found she had been unfairly dismissed and subjected to disability discrimination because the Trust did not take into account the fact that her behaviour of accessing her medical records and pestering her manager arose from her disability, which were then the cause of her suspension and dismissal. It also found that her suspension or dismissal were not a proportionate response in the circumstances and that she could not have been found “culpable or blameworthy” because her conduct was the result of long standing, pre-existing physical and psychological conditions. The Hospital Trust had to award Austin £265,719 as compensation for disability discrimination and £3,395 as damages for breach of contract.
Learning points
This is an important reminder that discrimination can arise when someone is treated unfavourably because of something arising in consequence of a disability rather than the disability itself. This is different to direct discrimination. But also, when reviewing a disciplinary matter, it is vital that the response is proportionate in the circumstances.
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