The Employment Tribunal held that a sequence of failings by the employer relating to workload and mental health, when viewed cumulatively, amounted to a fundamental breach of the employee's employment contract and discrimination arising from disability.
Aylott v BPP University
Mrs Aylott was employed as a lecturer by BPP University from 2013 until her resignation in 2019. During the course of her employment, Aylott applied for a senior role and as part of a health declaration informed her employer that she suffered from anxiety, depression and chronic back pain. She also suffered from Autistic Spectrum Disorder (ASM) which remained undiagnosed until after her resignation.
The University was aware that Aylott was experiencing some significant challenges in her personal life. Her husband passed away suddenly and her teenage son was diagnosed with myalgic encephalomyelitis. However, there was a 'long hours' culture amongst the management team and Aylott worked in excess of 60 hours per week, including weekends and evenings. In early 2018, she advised her line manager that she was experiencing symptoms of anxiety and was taking antidepressants. She cancelled holiday to accommodate the leave of a colleague and by September 2018 she was described as 'manic' and 'frazzled'.
At this time, a complaint was made by another department that Aylott was pushing back on requests made of her, citing the pressures of her workload, and that the tone of some of her responses had become abrupt. She was distressed by the complaint and its handling. She confided in her line manager that she was not coping and was self-medicating with alcohol. She provided a medical certificate to work reduced hours and although that it was widely acknowledged by her managers that she was struggling and that her health was suffering, no steps were taken to refer her to occupational health despite her request.
As a result of low mood, Aylott was signed off work by her GP in late 2018. Following the expiry of her entitlement to 15 days contractual sick pay, the University did not exercise its discretion to provide any further sick pay, even though it has provided discretionary sick pay to other employees in the past. She raised a grievance in relation to workload and treatment. She claimed that she was being treated less favourably because of her mental health conditions which amounted to a disability. At the grievance meeting, there was no real attempt to address her concerns and she was offered an exit under a settlement agreement.
It also came to Aylott's attention that a colleague had referred to her as "mad as a box of frogs, but a good worker".
She resigned and brought a claim for constructive unfair dismissal, unfavourable treatment arising from disability, direct and indirect disability discrimination, harassment relating to her disability and failure to make reasonable adjustments.
What Did the Tribunal Decide?
Dismissing the latter claims, the Tribunal found that Aylott had been constructively unfairly dismissed on the basis that the University's conduct had undermined trust and confidence. It was also held that an occupational health referral for Aylott was not arranged in a timely manner, and there had been a rush to secure her departure from the University as a result of stigma arising from her mental health. As this stigma arose from her disability, the unfavourable treatment she received in being offered a settlement agreement, rather than a resolution to her grievances, and the lack of occupational health support was discriminatory, and she was entitled to compensation for financial loss and injury to feelings.
Managing Mental Health in the Workplace
Mental health issues in the workplace are increasingly being recognised. Demanding workloads over sustained periods can cause or exacerbate mental health challenges. In order to maintain an effective workforce and promote the wellbeing of staff, it is important that HR professionals and managers understand their duties and fulfil their legal obligations in relation to the mental welfare of their employees.
Employers should be vigilant of signs that may indicate a potential mental health issue. They should engage with employees at an early stage to discuss whether any reasonable adjustments can be made to accommodate their needs. Where appropriate, various options should be explored to enable the employee to continue in their role and a timely referral to Occupational Health should be made to benefit from medical advice. Managers should receive training to help them identify and actively support staff with mental health conditions to reduce stigma and help avoid costly discrimination claims.
Originally published 04 July, 2020
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