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Tribunal rules energy giant used capability procedure to ‘rid itself’ of disabled employee
A senior analyst on the autism spectrum has won a claim for indirect disability discrimination after his employer failed to make reasonable adjustments for his condition.
Judge Jeremy Shulman ruled that energy supplier npower had suffered a “continuous management failure” after it failed to take reasonable steps to understand Tom Sherbourne’s disability and failed to implement two sets of reasonable adjustments, one of which was recommended by its own in-house doctor.
Sherbourne began work with npower on 2 October 2017 as a senior analyst. He worked in an open-plan setting with a busy walkway behind him, and the tribunal heard it was not very long before he felt overwhelmed and distracted. There were also building works going on around him.
Debra Glancy, operations manager at npower, told the tribunal that npower had no autism diversity policy, and she was unaware of anything specifically relating to autism within the organisation. People with autism often find background noise unbearably loud or distracting.
Glancy said she felt compelled to hold an informal discussion with Sherbourne about his “disruptive and loud behaviour” on just his second day. She spoke with him again a week later on 10 October, where she reportedly told him “we’re not here to wipe arse”.
Another meeting took place on 19 October, and Glancy said she was “of the view that not only was [Sherbourne] disruptive but he was also argumentative, could become agitated and that his behaviour was unacceptable”. At the same meeting, she told Sherbourne they would have weekly catch-up sessions, but the tribunal heard these never took place.
On or around 19 October, Sherbourne alleged Glancy told colleagues to “give Tom some things to do so that he doesn’t look like a lost dog”, but Glancy denied this happened.
By November, Sherbourne became distressed about changes to his working environment and different people sitting near him due to the flexible working policy. This caused him to have more frequent toilet breaks, and he often sweated profusely.
He “felt subject to distraction”, and the “noise and smells” at work caused him distress. Sherbourne added that he felt he was not getting support from his colleagues so he tried to cope alone.
On 2 February 2018, Sherbourne suffered what he described as a ‘breakdown’ at work, and said he had suicidal thoughts, but Glancy described this as “a bit of a meltdown”. Sherbourne went off sick, and was diagnosed by his GP with an anxiety disorder.
Sherbourne underwent an autism assessment and was referred to npower’s occupational health (OH) team on 11 April. Dr King, from the OH team, made various recommendations for his return to the workplace.
These adjustments were explained by Dr King to Glancy. Dr King agreed it was “likely” that Sherbourne would receive an autism diagnosis and almost certainly would be considered disabled under the Equality Act.
Glancy told the tribunal that “she knew that people with autism had difficulties” but said Dr King’s recommendations were not put in place because of inadequate training.
Glancy invoked the organisation’s capability process on 2 May, and this led Sherbourne to feel his manager “showed little empathy towards him”.
A welfare meeting took place on 20 June to discuss Sherbourne’s ability to attend work. The tribunal found Glancy was “more concerned with when [Sherbourne] would come back to work rather than his disability”.
The tribunal heard Glancy asked Sherbourne if he would like a lower-grade job.
Sherbourne received a letter the next day with a capability procedure notification, a comment of how his absence “fell short” of npower’s requirements and mention of the possibility of offering him a lower-grade role.
A further meeting took place on 3 August where Sherbourne presented Glancy with a “wish list” of adjustments. Glancy admitted to the tribunal that “everything on the list could be achieved”.
Sherbourne did not attend a meeting on 21 August to discuss the end of his contract. His employment was terminated with effect from 30 September. He appealed his dismissal, but this was refused.
Sherbourne brought complaints to the Leeds employment tribunal that npower had indirectly discriminated against him on the grounds of his disability and failed to make reasonable adjustments for his autism.
Judge Shulman ruled in favour of Sherbourne, saying npower failed to implement reasonable adjustments, inappropriately used its capability procedure and used “dismissal as a tool to rid themselves of a disabled employee”.
Paul Holcroft, Croner associate director, said employers needed to understand how the work environment and associated stimuli can have a significant impact on neurodivergent employees because of the way their brain interprets information such as sounds, sights and communication.
“Considering changes to the work environment is another important part of the reasonable adjustment duty, by discussing how best to support the employee in the business,” Holcroft said. “Even simple changes – like introducing quiet working hours, allowing noise cancelling equipment to be used or having allocated desks and drawers for autistic employees in a hot-desking office – can have a positive impact and help neurodiverse employees feel more comfortable at work.”
A spokesperson for npower said it was “disappointed by the ruling that we did not sufficiently understand and then make reasonable adjustments in this case”.
They added: “npower prides itself on the equal opportunities we provide and our diversity policies specifically include how employees with a disability are treated at work, including employees with autism. We are still reviewing the basis of the judgment – if this review shows that further training is needed at a local level, we would implement this immediately.”