Disability Discrimination During Workplace Investigations | Griffiths v Essex County Council
An employer's failure to involve an employee in an investigation led to findings of disability discrimination and compensation.
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Case Study
In Ong v Aberystwyth University, the Birmingham Employment Tribunal (ET) awarded more than £264,000 to a cleaner who was dismissed at the age of 69.
Ms Ong worked as a cleaner in the University’s halls of residence. She was dismissed after allegedly breaching the outcome of a mediation that had been arranged between her and her line manager. There was a lengthy history of disagreement between them. Ms Ong had previously raised a number of grievances, while her manager complained that she was unmanageable and that the situation was affecting the wider team. Colleagues had also reportedly complained about the impact on their wellbeing.
An external mediation was arranged and appeared to result in agreement. However, Ms Ong was later accused of breaching the confidentiality surrounding the mediation. She was suspended and subsequently dismissed.
Following her dismissal, Ms Ong was offered a role with a local authority. As part of its recruitment process, the authority requested a reference from the University. The University responded that it was unable to provide a detailed reference because it remained in dispute with the applicant. The local authority subsequently withdrew its conditional job offer.
Ms Ong brought claims for unfair dismissal, age discrimination, disability discrimination, race discrimination and victimisation. Although her discrimination claims failed, her unfair dismissal and victimisation claims succeeded.
In relation to unfair dismissal, the Tribunal found that the mediation agreement was a private agreement between Ms Ong and her line manager which had been facilitated by the University. The University was not itself a party to the agreement and, importantly, Ms Ong had never been informed that an alleged breach could lead to disciplinary action.
The Tribunal also criticised the University’s procedure, finding that the suspension letter did not adequately set out the allegations, those allegations were not properly explained during the disciplinary process, and no appeal hearing was held.
Case Study
Perhaps most significantly, the Tribunal found that Ms Ong had been victimised when the reference was provided.
The reference stated that she remained in dispute with the University. The Tribunal concluded that this statement was not necessary to provide a fair reference. The dispute referred to an earlier Employment Tribunal complaint and grievance, both of which constituted protected acts under the Equality Act 2010.
Describing the reference as “irresponsible and retaliatory”, the Tribunal found that it had been provided because of those protected acts and therefore amounted to unlawful victimisation.
Although Ms Ong was a relatively low-paid part-time worker, the compensation awarded was substantial. Her unfair dismissal award was approximately £3,200, while injury to feelings compensation totalled £12,000 plus interest. The largest element of the award related to future loss of earnings arising from both the loss of her employment and the withdrawal of the subsequent job offer, amounting to approximately £141,000. After pension losses and grossing up were applied, the total award reached £264,442.
While the unfair dismissal finding was significant, the reference ultimately proved to be the most costly aspect of this case. The decision is an important reminder that victimisation claims can arise long after employment has ended and that references must be approached carefully where there has been previous litigation or workplace complaints.
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