Heeding OH advice would have kept BT out of court

The case of BT v Pousson (EAT/0347/04) demonstrates how making reasonable adjustments as required under the Disability Discrimination Act (DDA) could have helped BT stay out of court. It also highlights the importance of following the advice of experts where they have recommended a course of action.

Mr Pousson worked for BT as a customer service adviser in a call centre. BT maintained a computer-based absence logging system and its reports led to a poor performance attendance procedure (PPAP) being invoked against Pousson on at least four occasions over a two-year period. Pousson, however, suffered from diabetes, a condition which renders sufferers more susceptible to infections than non-sufferers.

The PPAP states that it is not intended to cover situations where poor performance stems from absences connected to a disability. Following an annual performance review, Pousson was placed on a performance improvement action plan which put him under significant pressure to achieve tighter times on call-handling.

Pousson was discouraged from leaving his desk to test his blood sugar levels, effectively forcing him to test his blood sugar levels and inject insulin at his desk. When he tested at his desk, however, he was told by colleagues that he was causing offence. As a result, he was reluctant to test himself at work.

In August 2001, he did not self-test because of the pressure he was under from BT. As a result, he had a serious hypoglycaemic attack, which led to a head injury. He did not return to work at BT and, more than two years later, his employment was terminated.

During the course of his employment, BT was aware of Pousson’s diabetes and referred him to the occupational health (OH) department. The OH physician suggested reasonable adjustments for Pousson’s disability: allowing him time ‘off line’ to test his sugar levels and to inject; allowing him access to food and drink at his place of work; and varying his shift pattern to help him control the diabetes.

The OH report also made it clear that Pousson’s diabetes was a factor in viral infections and similar illnesses. BT failed to implement these adjustments.

Pousson complained to a tribunal of unlawful discrimination contrary to the DDA. The tribunal agreed there was a link between his level of absence from work and his disability. BT had applied the PPAP to him on a number of occasions when it should not have because Pousson was disabled and this amounted to less favourable treatment for a reason relating to his disability.

BT also failed to make a number of reasonable adjustments, in particular providing Pousson facilities for blood-testing and insulin injection and arrangements permitting him access to high glucose food and drink. In the tribunal’s view, BT’s key failures lay in not giving adequate guidance or training to line managers and failing to have the OH reports assessed by someone with suitable experience of people with disabilities.

BT appealed only in relation to the tribunal’s finding that Pousson had been treated less favourably for a reason relating to his disability. It argued that the tribunal had erred by adjudicating on issues not raised by Pousson in his claim form (he was unrepresented), and a number of findings unsupported by evidence.

The EAT gave short shrift to BT’s arguments and upheld the employment tribunal’s findings.

Lessons for HR
The facts of this case, though extreme, serve as a useful warning to employers of how not to treat disabled employees. When dealing with disabled employees or employees with long-term sickness problems, you should:

  • contact your occupational health facility (if you have one) as early as possible to recommend any reasonable adjustments. Ensure someone with suitable training and knowledge of managing people with disabilities implements that advice
  • train line managers in how to spot and assist employees who are struggling at work because of a disability or health problem
    be wary of treating poor attendance as a disciplinary issue. Many tribunals consider it unacceptable that employees who are absent through sickness or injury are put through a disciplinary process. Employees disciplined for poor attendance relating to a disability are likely to be able to successfully claim discrimination under the DDA

Vanessa Nicholls, Legal adviser, EEF

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