Hey up, it’s Philip Pearson-Batt here with his latest weekly blog.
There isn’t much going on in the world of the Pearson-Batts at the moment. Let me think…The biggest updates are that Benji has settled into his new chair and I went to see Othello at the RSC in Stratford-Upon-Avon the other week (absolutely fantastic if you’re into Shakespeare, if not a bit harrowing).
Really, we’re psyching ourselves up for lots of exciting activities we have upcoming. First on the agenda is our trip to Austria which is fast approaching. Our planning has mainly consisted of finding nice restaurants, finding out which Christmas markets are open (I’d recommend going later in November because our choices are going to be limited) and researching the best Sound of Music tour (Paul still refuses to go on one where we have to singalong but I’ve still got time to convince him).
Then, later in November we’re seeing the concert of the year. No. The century. Not the Eras Tour. Who’s Taylor Swift anyway? Ew. No. We’re talking… Jane McDonald. Live and in person! Oh wow. I can’t wait… Don’t get me wrong, I love me some Jane McDonald, but do I want 3 hours of her singing such hits as “Cake by the Ocean” and “Relight my Fire”? I’m not entirely sure I do want or need that. But Paul is extremely excited and that’s what marriage is all about right? Right?!
Now, onto employment law related matters.
The title of this blog isn’t me asking Rob and Emma whether I can bring Benji to work with me. No thanks. The chaos that would ensue does not bare thinking about. Instead, it’s a reference to a recent employment tribunal claim that I stumbled across the other day and that I thought was interesting for a whole host of reasons.
The case is Cullingford v Secretary of State for Justice and the facts go a little something like this… The Claimant was employed as a bailiff by the Ministry of Justice. Very sadly, she was diagnosed with cancer on three separate occasions. This meant she had to take time away from work. She returned to work but was suffering with anxiety.
The Claimant brought her dog (Bella) to work with her. This was spotted by colleagues and this resulted in the Claimant being told she could not bring her dog to work with her because it was deemed to be unsafe – the dog could jump out of the car.
The Claimant said that Bella was safe because she was strapped into the car (doggy seat belts are a must all!) She also said that she needed to bring Bella to work with her because she was acting as an emotional support animal, helping to alleviate the Claimant’s anxiety. The Claimant reported finding her job quite lonely and found that talking things through with Bella helped her to process matters and to relax. She emailed her manager making this clear and her manager went away to take advice from HR and Management.
Advice was also provided from the Disability Forum which referred to there being a difference between a formally registered assistance dog like a guide dog and an emotional support dog. Separately, the Claimant obtained a letter from her GP which supported an application for Bella to become a registered emotional support animal. Despite this, she didn’t go ahead with the application because, she said, she wasn’t sure it would make any difference to what her manager was saying anyway.
After consideration, the Claimant’s manager wrote to her to confirm she could not bring the Bella to work. The Claimant raised a grievance, asking to bring Bella to work as a reasonable adjustment. The Respondent didn’t really deal with this as a proper grievance but rejected the request anyway. The Claimant asked how to appeal this decision and was referred to internal appeal processes but was also informed that her manager felt Acas early conciliation (which had already started) was a form of appeal in and of itself (spoiler alert: early conciliation is no substitute for a proper internal appeal).
The Claimant ultimately brought claims in the tribunal for failure to make reasonable adjustments and harassment on the grounds of disability.
The basis of the reasonable adjustments claim was that the Respondent had a provision, criterion or practice (PCP) of not allowing bailiffs to take dogs in cars whilst carrying out their duties. That claim failed because assistance dogs, like guide dogs, would absolutely be permitted.
The tribunal did find a PCPhowever that: “bailiffs working from Leeds County Court are required to go to the homes of members of the public to execute their duties in circumstances that may well be tense and confrontational”. The tribunal found a relevant link between the Claimant’s anxiety and their cancer and went on to consider whether the exacerbation of the anxiety was caused by this PCP. The tribunal considered that the Claimant failed to take up an offer of a referral to occupational health and also failed to engage with a suggested stress risk assessment or to suggest other adjustments. The tribunal found, therefore, that there was no substantial disadvantage arising as a result of the PCP. The duty to make adjustments was not triggered and the claim failed.
In relation to the harassment claim, this was partly based on comments made by the Claimant’s colleague that other senior members of staff were allowed to bring dogs to work. The Claimant thought that her colleague was mocking her. The tribunal found the comments to be unwanted conduct but did not find that the comments were linked to a disability, nor did they have the purpose or effect of violating the Claimant’s dignity or creating a hostile, intimidating etc. environment. So, that claim failed too.
Perhaps the biggest takeaway from this case (apart from poor Bella now has to go doggy day care I imagine) comes from some observations the tribunal made before reaching their final conclusion. These observations have universal application and are helpful reminders of what you should be doing during processes like these.
One big thing was that the tribunal noted that there was a complete lack of notes taken by the Respondent during any discussions that they had with the Claimant. The tribunal was concerned by this. We would be too. You know Precept’s advice – paper trail, paper trail, paper trail. It makes life so much easier! In this case, the tribunal said that a lack of notes made it difficult to see the Claimant’s own explanation of her needs to the Respondent and this was exacerbated by the lack of a sit-down meeting with the Claimant to discuss what could or couldn’t be accommodated in terms of adjustments.
This all meant that the Claimant was left in the dark on the decision making process and that made her feelings of isolation worse which meant she became more entrenched in her position, making resolution between the parties that much more difficult.
This is a timely reminder then that wherever possible you should “involve” employees in the decision-making process. I’m not saying let them make decisions but just make sure you’ve met with them to properly explore what they are saying and once you’ve reached your decision explain the reasoning behind it clearly. Always make sure that your decision and reasoning is reflected in writing to follow up. Effective communication can save you a whole world of pain.
If you’ve got any questions about this or any other employment or HR matters, give us a shout!
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