Welcome to the November edition of the AdviserPlus newsletter.
In this month’s newsletter we are looking at a recent Employment Tribunal case highlighting the importance of making reasonable adjustments for employees with disabilities, in the ruling of the Mr T Duncan v Fujitsu Services Ltd case.
We will also make note of some key dates for your diary for December, so you are able to plan any activities or recognise any notable events.
Recent Case Law: Failure to make reasonable adjustments for employees with disabilities.
A recent Employment Tribunal case has again highlighted the importance of making reasonable adjustments for employees with disabilities.
During Mr Duncan’s employment with Fujitsu Services Ltd, a referral was made to occupational health to obtain advice relating to him being diagnosed with Asperger’s, meaning he would get sensory overload. The occupational health report recommended various adjustments that Mr Duncan may benefit from such as an explanation of unspoken office rules, keeping instructions clear and concise, writing instructions down if they are detailed, breaking down projects into bite sized pieces, ensuring Mr Duncan works six hours rather than variable shifts, giving plenty of warning of change and explaining why it is happening, reducing sensory specific stimuli such as allowing the use of headphones whilst he works, assigning a personal workstation rather than sharing or hot desking and using clean feedback with information that is given to him. They go on to advise Mr Duncan would benefit from having a relaxed space with calm colours, low lighting and quiet when possible as well as completion of a Stress Risk Assessment.
In March 2018, Mr Duncan requested to move to another business area as he felt he was no longer being challenged in his current role and he was therefore moved to a new team with a new line manager. At the time, the new line manager was informed Mr Duncan had a disability and required some adjustments however, the new line manager did not request sight of the OH report to understand what those adjustments were. They were aware Mr Duncan needed an environment that reduced sensory stimuli and to have the ability to work from home to be away from distractions but believed if any other adjustments were required, these would be raised by Mr Duncan. No stress risk assessment was carried out.
In October 2018 Mr Duncan worked on various projects for Fujitsu Services Ltd, during this time he contacted his manager to confirm he was struggling with several personal problems outside of work which were being exacerbated by his Asperger’s and this had resulted in him being prone to some severe bouts of anxiety. This had an impact on his ability to communicate during a recent client meeting. He informed his employer that he was feeling overwhelmed by the number of different things he had to juggle, and the response he received from his manager was “to multiply that by about 25 and then that is my job”. Mr Duncan advised his manager that if there was a big crowd, he may have to step away and the response to this was “ah yes, we all get like that sometimes”. During this same month Mr Duncan emailed his manager to again confirm he had been struggling with his mental health as a by-product of his disabilities, and he thought it had reached a critical mass, therefore he requested some short-term leave to recuperate and reset his schedule. Mr Duncan later took sick leave and was offered an OH referral. Upon his return to work his manager emailed him to confirm “You can just call us, we aren’t that scary” and “You need to call us, not e-email, as that’s policy.”
During February/March 2019 Mr Duncan commenced another period of absence after being asked to attend a course at short notice (43 minutes prior to the course starting). Mr Duncan did attend the course but left part way through and commenced his sickness absence but did not email his manager to confirm he had left or why. On 12th March 2019 Mr Duncan’s manager noticed he had not been online since 26th February 2019 and sent him a text message to ask if he was OK. Mr Duncan’s partner responded on his behalf to confirm she would respond due to him finding it difficult to communicate because of his disability and personal and workplace issues. The same day an email was sent by HR to Mr Duncan to confirm “As we have had no contact from you, I will send you a letter to which you must respond.” Mr Duncan’s partner sent an email signed by herself referring to Mr Duncan’s disability and confirmed that because he had been asked to go on the course at very short notice, he felt overwhelmed and therefore she would respond to the letter on his behalf upon receipt. A member of HR responded to Mr Duncan’s partner confirming that if Mr Duncan wished for her to liaise on his behalf, he would need to sign a letter to that effect and send to them.
By 28th March 2019 the manager had not heard from Mr Duncan or his partner and with the approval of HR, they sent a letter headed “absence without leave”. During this time Mr Duncan was living with his mother who came across the letter and contacted the line manager by text message without Mr Duncan’s knowledge or permission. The text message stated she was Mr Duncan’s mother, and she did not want him to know that she had contacted his employer however, she advised the manger that Mr Duncan had contacted his GP and offered to meet the manager at her address, stating Mr Duncan would need a disability team or family member to facilitate the meeting. The manager noticed they had a missed call from the same number that Mr Duncan’s mother had sent a text message from and over the next couple of days the manager spoke and sent various text messages to Mr Duncan’s mother arranging a meeting on 20th March 2019. This meeting was subsequently cancelled on 19th March 2019 after HR advised the line manager that the meeting could only go ahead with Mr Duncan’s consent and after Mr Duncan’s mother spoke to him about the meeting, he refused permission for either of his parents to attend and declined the meeting. Mr Duncan later returned to work.
In April 2019 Mr Duncan joined a different team and raised a grievance against his previous line manager for failure to make reasonable adjustments regarding assisting him with understanding what the clients’ requirements were ahead of a client meeting and not being given notice of in advance of changes to his routine including being invited to attend the course at the last minute, discrimination, victimisation, harassment and potential constructive dismissal as well as GDPR breach for agreeing to a request from his mother to discuss his sickness absence without his consent. Many of the grievance points raised at the grievance formed part of the complaints to the Tribunal and these are detailed in the judgment findings below.
In January 2020 Mr Duncan’s fixed term contract was replaced with a permanent one and during this time he worked under two new line managers. During a meeting on 3rd June 2020 Mr Duncan’s new manager (Line Manager A) requested he communicate verbally more, and then emailed afterwards to consolidate to avoid miscommunication, the manager acknowledged Mr Duncan’s preference for written communication only as much as possible and acknowledged this would be a big change for him. In a meeting around 10th June 2020 Mr Duncan suggested (to Line Manager B) they adopt a standard template for emails, for example an email ahead of a meeting with an agenda and then another template email that would be sent afterwards with any action points or minutes etc. Mr Duncan’s manager declined to implement the idea for the whole team.
In their judgement (full report here), the tribunal upheld the complaint of harassment related to disability by Fujitsu Services Ltd for failing to carry out a stress risk assessment despite Mr Duncan repeatedly stating that he was feeling stressed as a result of treatment at work. This was also apparent due to his absences in October/November 2018 and February/March 2019. It was also upheld due to the disclosure of confidential personal health and work information to Mr Duncan’s mother without consent or other lawful excuse.
The complaint of failure to make reasonable adjustments and indirect discrimination was upheld due to the contact requirements of Mr Duncan during sickness absence. Mr Duncan suffering from low communicative episodes during his absences therefore would find verbal communication more difficult. Mr Duncan found the comment about calling his line manager “as they are not scary” offensive and lacking in empathy/awareness of his disability and felt infantilised by the comment. This part of the judgment was also upheld in favour of Mr Duncan where his manager (in June 2020) requested he use oral communication as much as possible rather than written communication to avoid miscommunication. This also detailed a failure to consider or adopt the email templates suggested by Mr Duncan to encourage reasonably adjusted team behaviours providing concise written instructions, tangible agendas, and goals for meetings.
December awareness campaigns
- Dec 2nd – Dec 8th – National Grief Awareness Week 2023
- Dec 3rd – International Day of Persons with Disabilities 2023
- Dec 5th – International Volunteers Day 2023
- Dec 10th – Human Rights Day 2023
Note: The above guidance was correct at the time of writing this article on 09/11/2023. This does not constitute legal advice and is for information purposes only.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.