A plumber with a bad back who took his employer to an employment tribunal on the grounds of disability discrimination has been awarded more than £134,000 in compensation.
Mr Brosnan started worked for Coalo, a facilities management company owned by the London Borough of Hounslow, in September 2016. In February 2020 Brosnan experienced a re-emergence of a lower back injury which he attributes to an industrial injury sustained a year earlier which had led to him being off sick in 2019 and receiving treatment from an osteopath.
The judge said that when Brosnan started a period of sickness absence for low back pain in early February 2020, the respondent ought reasonably to have realised that this could be a recurrence of the previous problem.
An occupational health report at the time concluded that his condition constituted a disability. A further injury sustained in April 2021 led to a diagnosis of “acute back pain with sciatica” and a referral for an MRI scan, which revealed injuries to four discs in his lower lumbar region.
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However, rather than his sickness being treated as an industrial injury, Coala treated it as normal sickness absence and his pay was reduced.
After raising a grievance, Brosnan was forced to resign from his position because of the lack of reasonable adjustments that had been recommended by occupational health. He also claimed he was victimised for having been excluded from an employee WhatsApp group.
In her decision in Brosnan v Coala, employment judge Sarah George said: “I have found the failure to pay full sick pay because of an industrial accident to be an act of disability discrimination. I reject the argument that it was also an act of victimisation.”
Brosnan was told by the manager tasked with investigating his grievance that he was not added to the WhatsApp group because he was absent, the tribunal heard. The group had been created to communicate information including in relation to health and safety.
“This provides positive evidence that the reason for this act was his sickness absence,” said the judgment. “The respondent has failed to demonstrate that excluding him was a proportionate means of achieving a legitimate aim.
“Some employers do not contact employees at all during sickness absence for risk of exacerbating their ill health or bothering them with work-related matters at a time when they should be recuperating, but that cannot be presumed and in the absence of evidence put forward by the respondent I’m not satisfied that there was any justification for this.”
Brosnan was awarded £17,700 for injury to feelings, £8,200 for personal injury, £39,800 for loss of earnings, £5,100 for unfair dismissal, which with grossing up, unpaid holiday pay, unauthorised deduction of wages and breach of contract amounted to £134,400.
Andrew Willis, associate director of legal at Croner commented: “When an employee is absent due to sickness, especially where that sickness is due to a disability, there are several actions an employer should be taking to manage that absence and the employees return to work.
“Unfortunately for the employee in this case, few, if any at all, of these actions were completed. Ultimately, this proved to be a very costly mistake for the employer.”
In what the judge described as an “extraordinary” lack of engagement on the employer’s part, Coala failed to fulfil its duty to make reasonable adjustments for an employee with an ongoing condition.
Willis said: “This failure is evident in occupational health recommendations not being implemented, and in the lack of consultation with the employee who had indicated their readiness to return to work.
“The duty to make reasonable adjustments is an essential part of an employer’s responsibilities to enable those living with long-term conditions and disabilities to work, by removing the barriers that they face in carrying out their duties and relieving the disadvantages created by their disability.”
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