The recent order for the East of England Ambulance Service NHS Trust to pay compensation in the sum of £92,214 for disability discrimination is a reminder to employers that, where there is any possibility that an employee’s conduct or behaviour results from a potential disability, this possibility should be carefully explored.
In this case, the employee, Mr Flemming, suffered from a mixed anxiety depression disorder, which was exacerbated by the lengthy deterioration of his relationship with his employer. Mr Flemming was finally dismissed in 2015 after he failed to attend a disciplinary hearing, failed to attend appointments with occupational health and on the basis of his conduct during the disciplinary process.
The Trust was considered to have failed to follow a reasonable process and to have unjustifiably concluded that Mr Flemming was (in part) deliberately acting in the way that he did.
Discrimination arising from disability
Had it not been for his mental health disability, Mr Flemming would not have been required to attend the meetings which were the subject of the disciplinary hearing. His disability was an effective cause of his anger and so of his behaviour during the process.
The Employment Tribunal was therefore able to establish that Mr Flemming’s conduct ‘arose in consequence of his disability’ and that he had suffered discrimination arising from disability. Had the Trust investigated whether Mr Flemming’s conduct arose from his disability, the decision to dismiss may not have been made.
The Trust was unable to justify the discrimination because whilst they were not prevented from maintaining high standards of conduct, to do so without regard to fairness or reasonableness was disproportionate.
The compensation of £92,214 comprised £10,000 for injury to feelings, £20,000 for psychiatric injury and £62,214 for loss of earnings. Mr Flemming also received a basic award of £4,275 for unfair dismissal.