Two recent employment tribunal judgments highlight the need for employers to tread carefully when dealing with employees with protected characteristics and ill-health.

The first case looks at the dangers of creating a hostile working environment and discriminating against someone on the basis of a protected characteristic while the second examines how an employee should be treated when a health condition impairs their performance.

Walker v Arco Environmental Limited

Mrs Walker had been working for Arco Environmental Limited for three weeks when she told them she was pregnant. The owners of Arco made negative comments to her about the pregnancy and stopped interacting with her. She was made to feel ostracised and felt that they believed her condition would place pressure on their business.

Her hours were amended, with the result that her travelling time was substantially increased and she was led to believe that her working days were also to be changed. She resigned, claiming that her working environment had been hostile since she announced her pregnancy.

She brought an employment tribunal case claiming unfair dismissal and pregnancy discrimination. Despite only having worked at the company briefly, her case was upheld on the grounds that pregnancy is a protected characteristic and it is not necessary to have worked somewhere for two years before bringing a case.

By way of a reminder t he other protected characteristics are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief and sex.

Regan v Kent Community Health NHS Foundation Trust

The case dealt with an NHS administrator who was unfairly dismissed after failing to meet improvement targets.

Ms Regan had repeatedly made errors in her work, including sending confidential information to the wrong patient on more than one occasion, breaching data security regulations.

She attended a formal capability meeting and a performance improvement plan was agreed. She was warned that she could be dismissed if her work did not improve. Following the meeting, she was diagnosed with cataracts and she informed her employer of this, saying that she believed this was the reason for her mistakes.

The errors in her work continued and she was signed off of work because she could no longer cope with the pressure. She was moved to another role where her new manager found her challenging and ‘full of animosity’.

Ms Regan raised a grievance claiming she was being bullied and harassed, which was not upheld.

The judge accepted that she had been dismissed because of her lack of capability and the errors she had made, but said that the employer should have looked at how her ‘inability to perform fully while she was visually impaired could be accommodated, rather than to continue to insist upon what was, on the balance of probability, unrealistic improvement.’

She was awarded a basic and compensatory award of just over £15,000 for unfair dismissal.

In cases of illness or health conditions, employers will be expected to obtain medical evidence and base expectations of their employee on what can be reasonably achieved.

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