Unfair disciplinary action because of disability
Published 11 November 2020
Working with a disability and a lack of meaningful support can be difficult and create serious problems for an employee.
Jamie, a type 1 diabetic, worked in a pub serving food and drink when he faced disciplinary action and the threat of dismissal.
At his disciplinary hearing our representative argued that the treatment of Jamie was both unfair and discriminatory.
The allegations Jamie faced were of rude and abusive behaviour to customers and failure to carry out a reasonable management request.
While the allegations of rude behaviour lacked sufficient information to allow Jamie to respond, the most shocking aspect of the case was his apparent failure to follow a management instruction.
Jamie was suffering a ‘hypo’ - where the level of sugar (glucose) in a diabetics blood drops too low – when he was asked by his female manager to serve a customer and was unable to do so.
At the time Jamie, who had worked for the company for three years, felt shaky, disorientated, anxious and faint.
After Jamie had recovered his boss was furious, the explanation did not appease her.
The two had what was described as a frank exchange of views before Jamie was suspended from work.
The day after Jamie was suspended a colleague, who supported him when he was having the hypo, sent him a text message expressing his shock at what had happened to him. The message was very critical of the manager.
Jamie contacted the Castle Associates Employee Support Centre for help.
When Jamie first spoke to our representative he explained that his employer was fully aware of his diabetes from the start of his employment.
He had suffered hypos previously, fainted and felt unsupported by his employer despite asking for reasonable adjustments.
Adjustments Jamie requested were to be allowed to have his lunch break at the same time every day and to wear different footwear, as complications with his diabetes meant he had a problem with his foot. Both were refused.
Jamie felt his treatment amounted to discrimination because of his disability. But he felt that as he had raised his concerns, and nothing had been done there was nothing else he could do.
Our representative explained that Jamie could raise a formal grievance.
Jamie did not want to raise a grievance. Instead he wanted details of the treatment he had been subjected to, to be presented in response to the allegations made against him.
Prior to the disciplinary hearing our representative wrote to the employer to request that Jamie’s colleague attend the hearing as a witness. Employee’s are able to make such a request in accordance with section 12 of the ACAS Code of Practice.
At the hearing our representative told the meeting chair about Jamie’s disability, the impact of it and provided details of treatment he had been subjected to at work.
It was explained that at the time of the allegation he was having a hypo and his ability to respond to the manager’s request would have been significantly impaired by his disability.
It was maintained that if he was punished for this it can be considered disability discrimination.
Jamie’s workmate who attended the hearing as a witness explained what happened on the day and how Jamie had fallen ill. He also explained the manager’s unhelpful and uncaring response and attitude.
The allegation of rude and abusive behaviour to customers was simply taken from a comment in the manager’s statement.
Our representative pointed out that no evidence or specific details had been provided to support such an allegation.
After our representative presented Jamie’s case, both he and Jamie were surprised because the disciplinary hearing chair did not ask a single question.
The hearing was told that Jamie’s desired outcome was to have the allegations dismissed, clear his name, transfer to another bar closer to home and be receive meaningful support for his disability. He got all four of his wishes.
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