Fairbrother’s recent case against Abbey National plc [2007], referred to an employee who had worked as a customer manager since March 1998. The employee suffered from Obsessive Compulsive Disorder (OCD), a fact that was not reported to the employer at the time she applied for the job, but was left clear after she took office. During the initial period of her employment, she had a good relationship with her colleagues. However, this changed in 2002 when two of her co-workers began treating her and another employee, R of hers, less favorably.

From then on, he was teased about his OCD and his low-level behavior that was primarily designed to alter his condition. R was mocked for his perceived low work rate, and both R and the employee were ostracized. The situation deteriorated to the point where the two fellow offenders only communicated with the employee via email, even though they were all in the same office. After a particularly stressful week, the employee left on July 25, 2003. She informed the area manager, N, of the problems that had led her to leave, and he began to investigate the complaint.

The two colleagues accepted that they had behaved inappropriately towards the employee during that week, and then both apologized to N. This result of the investigation was passed on to the employee, and she was advised that she should arrange to have ‘a cuppa’. tea’ with his two colleagues to try to resolve their differences. She was also told that she could have faced a disciplinary hearing for leaving on the 25th. On August 13, she wrote a letter to N describing the events that led to her leaving, but the letter made no reference to her OCD.

Following a meeting with a member of the employer’s human resources department, F, it was decided that a full investigation should be undertaken into the events that occurred the week of July 21, 2003. A month after that meeting, the employee requested that the events prior to that week should also be investigated. This second request was denied by the employer. A grievance meeting was then held to discuss the employee’s allegations that she had been bullied at work and that N had failed to conduct the initial investigation properly. These complaints were dismissed, which led the worker to appeal against this decision.

An investigation of all the complaints filed by the employee was then carried out and, on February 9, 2004, all of her complaints were dismissed. Subsequently, on July 7, 2004, she resigned on the grounds that her employer had failed to bring her complaints to a reasonable conclusion. The employee then filed a lawsuit before the labor court for unfair dismissal for having been discriminated against due to her condition.

The court held that she had been unfairly dismissed due to the fact that the employer’s lengthy grievance procedure had a number of serious flaws which meant that the employer had behaved in a way that irreparably damaged the relationship of mutual trust between him and the employee. . . The employee’s discrimination claim was upheld because the treatment she had received from her co-workers had been detrimental and that there was a distinction between the treatment she had received and the treatment received by R. The employer then appealed.

The employer claimed that the labor court had erred in finding unfair dismissal based on alleged failures in its grievance procedure. They argued that:-

§ The court did not consider whether the grievance procedure fell within the range of reasonable responses available to the employer.

§ The court had erred in limiting its considerations to the question of whether or not the employee had been treated differently; and

§ The court should have considered whether or not the employee received less favorable treatment.

The appeal was admitted.

§ The court was held to have erred in failing to consider whether the employer’s conduct had fallen within the range of reasonable responses available when investigating employee complaints.

§ The court had based its decision on the flaws found at the initial stage of the grievance procedure and, despite the fact that these flaws had been corrected as the investigation progressed, it had still erroneously found that the employer had unfairly terminated the employee.

§ In addition to this, the evidence presented to the court, including evidence that R had suffered treatment similar to that denounced by the employee, showed that the relationship between the employee and the two offending co-workers had been broken, so the behavior it was not related to his OCD.

§ In those circumstances, the court should not have allowed the employee’s disability discrimination claim.

Therefore, the worker’s claims were dismissed.

If you need more information, please contact us at [email protected] or visit http://www.rtcoopers.com/practice_employment.php

© RT COOPERS, 2007. This Information Note does not provide a comprehensive or complete statement of the law relating to the subjects discussed nor does it constitute legal advice. Its sole purpose is to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.