Dismissal following employee’s concerns about Covid- 19 was disability discrimination
In the recent case of Mrs D Haggerty -V-Modality Partnership an Employment Tribunal in Sheffield upheld claims for disability discrimination and automatic unfair dismissal on health and safety grounds and for having blown the whistle.
What was the allegation against the Claimant?
The claimant had been anxious about her health during Covid-19 as she’d previously had cancer a few years earlier and was concerned it had returned. It later turned out that that this was scarring from the radiation therapy but the claimant did not know this at the time.
Her employer had proposed that some interns would come to observe the claimant and her colleagues later in the day. However, the claimant was worried that it would be difficult to adhere to one metre of social distancing in this context. This led to the claimant and her colleagues expressing to their manager that they were unhappy about the decision a discussion in which the claimant used an expletive.
The employer terminated the claimant’s employment because she had used the expletive in addition to some other matters that the Tribunal found were “innocuous”.
The Employment Tribunal found that the claimant’s use of the expletive arose from her anxiety about her disability. The dismissal was not deemed to be justified as there was no compelling evidence that the claimant’s conduct was likely to be repeated at a time when she was feeling less anxious. In fact, the claimant had accepted that the conduct was wrong and that she would act differently in the future.
In light of this, the claim for disability discrimination was upheld.
Was the dismissal on health and safety grounds?
Yes, according to the Employment Tribunal. The claimant’s health and safety concerns were reasonable and also fell into the category of whistleblowing. The dismissal was not only based on the claimant’s use of an expletive but was also based on the employer’s view that she had expressed dissent. As such the dismissal was deemed to be both on health and safety grounds and because the claimant had raised a protected disclosure.
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All advice is correct at time of publication.