In the recent Employment Tribunal case of Miss J Frost v Retail Design Solutions Consultancy Ltd: 3200645/2017 it was decided that an employer’s decision to bar progression unless the employee could resolve anxiety issues amounted to disability discrimination.

It is important to note that the employee was taking medication and receiving Cognitive Behavioural Therapy as treatment for anxiety which she had suffered from for a long time. The serious and long term nature of her anxiety was sufficient to fall within the definition of a ‘disability’ for the purposes of the Equality Act 2010.

As part of the employee’s role as a senior designer she was required to attend meetings and site visits. The employee informed the employer that she struggled with anxiety in these contexts. The employer switched her to a different role and during the course of various meetings informed the employee that she would not progress unless she resolved her issues.

The Employment Tribunal agreed with the employer that this was not a case of direct discrimination as the employer would have treated a non-disabled person in the same way. Under the Equality Act however an employer can still be liable if they have treated an employee unfavourably because of something that has arisen from the disability unless it can be justified in the circumstances.

In this case the Employment Tribunal had no hesitation in finding that a cap on promotion was ‘unfavourable’ treatment. The issue then was whether or not the Respondent was justified in applying such a cap. It is easy to see why such a cap may be justified in certain cases. An employer would not necessarily be expected to promote someone if their disability was likely to inhibit their ability to carry out a more senior role. In this particular case however the employer had not obtained enough evidence to support its position. Crucially it had not obtained an Occupational Health report or even sought advice from the employee’s GP. In these circumstances the Respondent did not have sufficient evidence in support of its argument that the decision was justified.

The employee had also asserted that the employer could have made ‘reasonable adjustments’ to help her carry out the role. They could, the employee asserted, have asked colleagues to attend with her for support, helped her to prepare for meetings or allowed colleagues to attend instead without this affecting the employee’s promotion prospects. The employer did not engage with these suggestions and, as noted above, did not seek any medical evidence to support its stance. In these circumstances the Employment Tribunal took the view that the adjustments would have been reasonable given that the employer had produced no evidence to the contrary.

The employee was awarded £52,269. The award for injury to feelings was £14000; the Employment Tribunal having taken account of the fact that the employee was vulnerable due to her pre-existing anxiety.

An Employment Tribunal would be far less likely to uphold a claim for disability discrimination where an employer has sought occupational health advice and followed that advice. The employer in this case could have acted in exactly the same manner but succeeded in defending the claim had it obtained occupational health advice in support of its actions.  

Employers should consider having a policy that places the onus on its key personnel to seek medical advice of some sort before reaching key decisions affecting disabled employees.

This is a first instance decision and thus is not binding on other Employment Tribunals but may be persuasive.

Read the cases here and here

If you need advice on this case or any other employment matter please contact me on martin.cornforth@elliotmather.co.uk.