In the most recent EAT decisions there is an important case, that will be of note to both employers and employees when dealing with disabilities in the workplace. In the case of O'Gorman v Glen Tyre Company UD2314 [2010] the employee commenced work with the Employer in 2006 as a mechanic. In May 2010 the employee went on sick leave and in September 2010 resigned.
Subsequently the Employee brought a claim of constructive dismissal against his employer for excessive workloads, exclusion and bullying, harassment and aggressive behaviour.
The employee in this instance suffered from a syndrome known as Asperger Syndrome, which falls into the category of Autism spectrum disorders. The employee was extremely intelligent and talented when it came to dealing with anything mechanical, however relied heavily on his parents for normal day-to-day issues.
Prior to commencing employment the employee's father spoke to the employer at length regarding Aspergers and the to educate the employer as to the challenges it brings.
Over the course of the hearing the employee brought up a number of issues which precipitated the leave of absence, such as being reprimanded in public by the employer. The tribunal noted that the employer should not be expected to make exceptions for the employee when it came to matters of business, and that the employer has the right to reprimand the employee for not following orders, however should have done so in a private and more gentle way, knowing how sensitive the employee was to reprimand. To do so in public risks humiliating the employee.
The employee argued that he felt excluded as people would oftentimes go to lunch and he would be left on his own to work through his lunch, however the Tribunal noted that time means nothing to the employee and the lunch hour could come and go without them noticing, he would have to be called for his lunch or else he would not know it was lunch time. The tribunal said that there probably were times where the employer or employees neglected to call the employee for his lunch but that no malice was involved.
In May 2010 the employee went out on work related stress leave, due to his increasing workload, however the employer was unaware of such reasons until the second sick cert was received, and after this the employer tried to contact the employees father on several occasions.
the Tribunal stated that "it is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and that the employer be given an opportunity to resolve the issues. In this unusual case the claimants parents had a duty to inform the employer why the claimant was suffering from stress and should have informed him that the claimant felt he was subject to behaviour that amounted to bullying, harassment and exclusion. Their failure to do so left the employer powerless to rectify the situation".
The tribunal noted that the law makes no allowances, rightly or wrongly, for claimants who suffer from Aspergers, and is bound by the law, and so the claim under the Unfair Dismissals Acts,1977 to 2007 must fail.
This case is important as from an employers point of view they should educate themselves as to the challenges an employee may face and how they are likely to overcome this, and an employee should note that the employer should be given the chance to rectify any situation before terminating their employment. Reasonable accommodations should be made when employing an employee who may have a disability, however sometimes a change in approach is enough to ensure people are accommodated in the workplace.
