Miss J A Gower v Babcock Land Defence Limited — 2021

The claimant was accepted to be disabled from December 2016 because of muscle dystonia of the throat and temporomandibular disorder. The tribunal found that the respondent had constructive knowledge of her disability from 30 October 2017 and actual knowledge by 26 February 2018 after receiving the second occupational health report. It also accepted that stress worsened the claimant's symptoms and that the respondent had been told repeatedly that workload and stress were affecting her health.

The tribunal identified two relevant provision, criterion or practice issues. First, it found a continuing failure to follow the occupational health recommendation to repeat and implement a stress risk assessment between 26 February 2018 and 4 March 2019. It held that this failure placed the claimant at a substantial disadvantage because stress was a contributory factor to her condition and the absence of the assessment left her without the management support and planning that she said was important to controlling her symptoms. Second, it found that the practice of allocating or increasing workload when staff left or new work came in also placed her at a substantial disadvantage from October 2017 to January 2019, because workload pressure had a more serious effect on her than on non-disabled employees.

On reasonable adjustments, the tribunal held that it was reasonable for the respondent to have carried out the second stress risk assessment and that this should have been done from 21 August 2018, when the respondent was on notice that the claimant's health was being affected and that the risk assessment had not been completed. It treated the omission as a continuing breach until the assessment was in place and being used as a live management document on 4 March 2019. It did not find that the respondent failed to make any further adjustment by way of reallocating more work, providing extra assistance, or moving another manager into the claimant's cell, because it considered the respondent had already taken some workload measures and could not reasonably have done more at the time.

The tribunal rejected the allegation that the respondent had a practice of not following its grievance procedure. It found that the delays in the first and third grievances were explained by the circumstances and complexity of the matters, that the claimant was kept informed, and that the process did not amount to a wider PCP. It also held that the claim was in time because the failure to make the reasonable adjustment was a continuing omission. Remedy was not determined in this judgment and was left for a further hearing if required.