Our annual Mock Employment Tribunal in conjunction with the CIPD students at Hereford and Ludlow College took place this week.
This is a popular event that has been running for a number of years now. The students were supported by a large number of attendees from local businesses who joined us to watch proceedings.
What is an Employment Tribunal?
The tribunal may consist of an employment judge and two lay members. However, in many cases, including claims for unfair dismissal, the employment judge can sit alone.
The scenario this year focused on whether an employee suffering from stress, anxiety and depression qualified as a disabled person under The Equality Act 2010 and if so, was she discriminated against by her employers.
Working with the level 5 CIPD students at Hereford and Ludlow College, Kidwells spent four weeks reviewing the evidence, training on the Tribunal process, understanding the law and finally, becoming advocates in order to present their case at this year’s Mock Employment Tribunal.
Mental Health in the Workplace
Mental illness is the largest single cause of disability in the UK and the range makes mental health in the workplace difficult to manage.
There is still a lack of understanding about mental health. It is often thought to be a sign of weakness, which it is not. This stigma creates of fear of being judged and discourages people from talking about their mental health. Someone experiencing mental health may feel unable to tell their manager or seek help. The problems they are having may not be spotted until it becomes a serious problem for the individual and the organisation.
The government are campaigning for employers to take more proactive steps to invest in addressing and improving mental health and the benefits of doing so but just because they don’t this won’t always mean discrimination. Only in some cases will employers be legally obliged to take certain steps if the legal definition of disability is met.
Under the Equality Act 2010 you are disabled if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.
The above test was what the students had to focus on, to establish whether or not the Claimant (employee) met the threshold and whether the Company had knowledge of the disability. Thereafter, to address the issue of discrimination.
Types of disability discrimination can include:
- Harassment and victimisation
- Failure to make reasonable adjustments
In this specific scenario the students were addressing the issue of failure to make reasonable adjustments by the Company.
The Claimant (employee) team maintained that the Claimant was disabled under the Act and relied on a Disability Impact Statement prepared by the Claimant setting out how here day to day life had been affected by her mental impairment for over 12 months. They also argued that the Company knew about this disability due to fit notes received from her GP, numerous meetings where the Claimant had confirmed she was suffering with various mental health issues, had made comments in connection with suicide and had confirmed the medication she was taking. The Claimant team argued that the Company had failed to follow both internal procedures and guidance provided by ACAS and by not implementing adjustments to support the employee, she was treated less favourably than non-disabled employees which lead to her dismissal which was on the grounds of performance. Their argument being if the adjustments had been implemented, her performance would have improved and dismissal would not occurred.
The Respondent (Employer) counter argued that whilst mental health issues are more than capable of amounting to a disability, to be protected by the Equality Act the issue must last (or be expected to last) for a period of 1 year or more which they say it did not as the forms of stress and depression suffered by the employee were related to specific life events. They established that the stress resulted from the employees unhappiness with a new work system and the previous bereavement and was clearly a reaction to life events meaning she would not qualify as a disabled person.
They also referred to case of J v DLA Piper where the EAT drew a distinction between symptoms of low mood and anxiety caused by clinical depression and those that derived from a “medicalization of work problems” or “adverse life events”. While the former was likely to be a disability, the latter was not.
The Judge Panel at the Mock Hearing confirmed that the Claimant team had failed to establish that the employee met the threshold for being a disabled person despite the burden of proof being on them to do so. The Tribunal was not satisfied that the Claimant met the test and therefore, as the employee was not deemed as disabled, there had been no discrimination.
The Employer was, however, criticised for the procedures followed and warned that the Unfair Dismissal claim was likely to succeed against the Company due to procedural flaws and the reasonableness of the decision.
Of course, both arguments were presented in considerably greater detail than the above, the weeks of preparation clearly evident to the Tribunal and all attendees. The mature CIPD students were a complete pleasure to work with. Their hard work and determination to succeed at not only the Mock Hearing but also to learn best HR practices to avoid ending up at a real Employment Tribunal was evident right from the first session.
We are blown away every year by how well the students perform and 2019 was certainly no exception.
Thank you as always to Alastair Pratt, Course Leader at the College for welcoming Kidwells back for an 8th year. Thinking caps are now on for the topic for next year!!
Can we help?
Establishing disability, knowledge of disability and discrimination in the workplace is such a vast and complicated topic and poses a high risk to Employers. If you require further information on steps to take to establish disabilities in the workplace and how to address, manage and support please do not hesitate to make contact.