CM September 2020

HR MATTERS
LESSONS LEARNED
A tale of workloads, contracts and discrimination.
AUTHOR – Gareth Edwards
IN a recent case – Aylott v BPP University
– the Employment Tribunal found that
a failure to address workload concerns
may amount to breach of contract and
discrimination claims.
The tribunal held that a sequence
of failings by the employer relating to workload
and mental health, when viewed cumulatively,
amounted to a fundamental breach of
the employee’s employment contract and
discrimination arising from disability.
THE CASE
Mrs Aylott was employed as a lecturer by BPP
University from 2013 until her resignation in
2019. During the course of her employment,
Aylott applied for a senior role and as part of
a health declaration informed her employer
that she suffered from anxiety, depression and
chronic back pain. She also suffered from Autistic
Spectrum Disorder (ASM) which remained
undiagnosed until after her resignation.
The University was aware that Aylott was
experiencing some significant challenges in
her personal life. Her husband passed away
suddenly and her teenage son was diagnosed
with myalgic encephalomyelitis. However,
there was a ‘long hours’ culture amongst the
management team and Aylott worked in excess
of 60 hours per week, including weekends and
evenings. In early 2018, she advised her line
manager that she was experiencing symptoms
of anxiety and was taking antidepressants. She
cancelled holiday to accommodate the leave
of a colleague and by September 2018 she was
described as ‘manic’ and ‘frazzled’.
At this time, a complaint was made by
another department that Aylott was pushing
back on requests made of her, citing the
pressures of her workload, and that the tone
of some of her responses had become abrupt.
She was distressed by the complaint and its
handling. She confided in her line manager that
she was not coping and was self-medicating with
alcohol. She provided a medical certificate to
work reduced hours and although it was widely
acknowledged by her managers that she was
struggling and that her health was suffering,
no steps were taken to refer her to occupational
health despite her request.
As a result of low mood, Aylott was signed off
work by her GP in late 2018. Following the expiry
of her entitlement to 15 days contractual sick
pay, the University did not exercise its discretion
to provide any further sick pay, even though it
has provided discretionary sick pay to other
employees in the past. She raised a grievance in
relation to workload and treatment. She claimed
that she was being treated less favourably
because of her mental health conditions which
amounted to a disability. At the grievance
meeting, there was no real attempt to address
her concerns and she was offered an exit under
a settlement agreement.
It also came to Aylott's attention that a
colleague had referred to her as ‘mad as a box of
frogs, but a good worker’.
She resigned and brought a claim for
constructive unfair dismissal, unfavourable
treatment arising from disability, direct and
indirect disability discrimination, harassment
relating to her disability and failure to make
reasonable adjustments.
THE DECISION
Dismissing the latter claims, the tribunal found
that Aylott had been constructively unfairly
dismissed on the basis that the University’s
conduct had undermined trust and confidence.
It was also held that an occupational health
referral for Aylott was not arranged in a timely
manner, and there had been a rush to secure
her departure from the University as a result
of stigma arising from her mental health.
As this stigma arose from her disability, the
unfavourable treatment she received in being
offered a settlement agreement, rather than
a resolution to her grievances, and the lack of
occupational health support was discriminatory,
and she was entitled to compensation for
financial loss and injury to feelings.
BEST PRACTICE
Mental health issues in the workplace are
increasingly being recognised. Demanding
workloads over sustained periods can cause or
exacerbate mental health challenges. In order
to maintain an effective workforce and promote
the wellbeing of staff, it is important that HR
professionals and managers understand their
duties and fulfil their legal obligations in relation
to the mental welfare of their employees.
Employers should be vigilant for signs that
may indicate a potential mental health issue. They
should engage with employees at an early stage
to discuss whether any reasonable adjustments
can be made to accommodate their needs.
Where appropriate, various options should be
explored to enable the employee to continue in
their role and a timely referral to occupational
health should be made to benefit from medical
advice. Managers should receive training to help
them identify and actively support staff with
mental health conditions to reduce stigma and
help avoid costly discrimination claims.
Gareth Edwards is a partner in the employment
team at VWV. gedwards@vwv.co.uk
Advancing the credit profession / www.cicm.com / September 2020 / PAGE 55