We’ve all heard about Tribunal recommendations – they are contained in section 124 of the Equality Act 2010. This is where, upon finding an employer guilty of discrimination, a Tribunal is entitled to issue a directive to the offending employer to take steps to stop a similar course of events occurring in the future. It is still extremely rare for a Tribunal to issue a recommendation. It is not an order, so the employer can ignore it. Ignore it at its peril however since if the same employer is met with the same charge of discrimination before another tribunal, the tribunal is entitled to find an inference of discrimination and the employer will struggle to defend discrimination claims.
The facts of the case of Crisp v Iceland Frozen Foods (ET/1604478/11) are that Mrs Crisp suffered from severe panic attacks. This was known to her employer who acknowledged that it amounted to a disability. Mrs Crisp moved to a new branch of Iceland and did not meet with great sympathy from her new manager, Mr Evans. Mrs Crisp ultimately went off sick due to mental health issues and while off sick was dismissed. The dismissal arose from the fact that Iceland had not received full medical certificates covering her absence and considered her leave to be unauthorised. Iceland did not have an up-to-date address for Mrs Crisp and although it had written to her advising her of the dismissal, the letter had never been received. Mrs Crisp only became aware of the dismissal when her pay stopped.
Appealing the dismissal Mrs Crisp was told she could not be accompanied by her husband. Eventually Iceland allowed her to bring her mother to the hearing but the mother was only allowed to sit outside the hearing room. During the course of arranging the appeal meeting Mr Evans and his HR colleague Ms Newberry inadvertently left a very unfortunate message on Mrs Crisp’s answering machine which she later heard. Mr Evans and Ms Newbury were joking about what might happen during the appeal meeting. Mr Evans said “she’ll spring a fucking fuse and have a panic attack and that will be the end of that”.
Mrs Crisp’s appeal was upheld and she was offered a post in another store. She no longer wished to work for Iceland after the way she had been treated and brought claims of constructive unfair dismissal and disability discrimination. She succeeded in all heads of claim.
It is unusual for a Tribunal to issue a recommendation. It is likely that the particularly appalling circumstances of this case and the directly discriminatory attitudes displayed led the Tribunal to do so. One thing is for sure: if employers want to avoid being on the receiving end of a recommendation they need to ensure adequate training is given around disability and other aspects of equal opportunities. Iceland has until 23 May 2013 to ensure that all HR staff who guide managers on disciplinary and grievance procedures, and all area managers, must undergo training in disability discrimination and in particular, mental health.
We offer disability and mental health training in conjunction with trained psychotherapists and counsellors. Ask us what we can do for your business.