One of your employees is agoraphobic and an ADHD sufferer, and on long term sick leave. You decide not to invite her to the office Christmas party, a gathering of 8 colleagues, because you fear it would cause her too much anxiety. Did you ever think that “tribunal claim” would be on the menu?
Echoes Ecology, an ecological consultancy service, employed Shelby Caughman full time, knowing of her medical issues. EE made reasonable adjustments to enable her to prepare for any meetings with its directors. At one of those meetings, she mentioned that she was also afflicted with autism. EE readily made further adjustments.
Having then raised an unexplained mental health problem, Ms Caughman was allowed a week’s paid leave in June 2024. This led to a further week’s sick leave, which became indefinite after a phased return had failed. An unexpected grievance then emerged. It was gently rejected, albeit with a promise of occupational health support.
The OH report included a proposal that Ms Caughman be exempted from team meetings and works social gatherings. Ms Caughman clarified that she simply wanted a choice. With no sign of an early return to work, and an exploratory meeting planned for January, EE decided not to invite her to the firm’s Christmas night out. In looking to avoid creating further anxiety for her, they noted that she had described the thought of a return to work in December as “overwhelming”. When she picked up on this, they explained that they thought an invitation would have been insensitive.
Was this less favourable treatment because of a protected characteristic? If so, was it a proportionate means of achieving a legitimate aim?
The tribunal decided that this did comprise discrimination arising from disability. However, the claim failed on two counts. The aim of avoiding additional distress via a futile invitation to the Christmas night out was objectively justified. In parallel, EE genuinely believed that she did not want to attend it. The decision was found to be a proportionate means of achieving a legitimate aim. Indeed, EE would have treated any other employee in the same circumstances identically. It was noted in passing that the tribunal also rejected Ms Caughman’s complaint that EE’s reasonable adjustments did not turn out to be good enough.
Many employers in a situation of this kind may feel that it is “damned if we do, damned if we don’t”, and take a risk. On this occasion, EE was able to demonstrate that it considered the options and their consequences, and did not make assumptions.
If you are facing the risk of an internal process – be it a grievance or an occupational health recommendation – escalating into a dispute, you may find a second opinion valuable. Let us know. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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