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Employment Law – OCD – Unfair Dismissal – Discrimination

The recent case of Fairbrother v Abbey National plc [2007], concerned an employee who was employed as a customer manager since March 1998. The employee suffered from Obsessive Compulsive Disorder (OCD), a fact which at the time when she applied for the job was not made known to the employer, but which became clear after she took up her position. For 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 to treat her and another employee, R, less favourably.

From then on she was subjected to taunts concerning her OCD and low-level behaviour which was principally designed to upset her condition. R was taunted about her perceived low work-rate, and both R and the employee were ostracised. The situation deteriorated to the point where the two offending colleagues only communicated with the employee by e-mail, despite them all being in the same office. Following a particularly stressful week, the employee walked out on 25th July 2003. She informed the area manager, N, about the problems which had led to her leaving, and he began to investigate the complaint.

The two colleagues accepted that they had behaved in an inappropriate manner towards the employee during that week, and then both apologised to N. This outcome of the investigation was passed on to the employee, and she was advised that she should arrange to have ‘a cup of tea’ with her two colleagues to try to resolve their differences. She was also told she could have faced a disciplinary hearing for walking out on the 25th. On 13 August, she wrote a letter to N outlining the events which led to her walking out, 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 of the events occurring in the week of the 21st July 2003 should be undertaken. A month after that meeting, the employee asked to have the events prior that week investigated as well. 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 not conducted the initial investigation properly. These complaints were dismissed, which led to the employee to appeal against this decision.

An investigation was then carried out of all the complaints that made by the employee and, on 9 February 2004, all her complaints were dismissed. Subsequently, on 7July 2004, she resigned on the grounds that her employer had failed to bring her grievances to a reasonable conclusion. The employee then brought a claim before the employment tribunal for unfair dismissal in that she had been discriminated against due to her condition.

The tribunal 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 which irreparably damaged the relationship of mutual trust and confidence between it and the employee. The employee’s discrimination claim was upheld on the grounds that the treatment she had received from her colleagues had been detrimental and that there was a distinction between the treatment which she had received and the treatment received by R. The employer then appealed.

The employer submitted that the employment tribunal had erred in finding unfair dismissal based on the alleged flaws in its grievance procedure. They argued that:-

§ The tribunal had failed to consider whether the grievance procedure was within the range of reasonable responses available to the employer.

§ The tribunal had been wrong to confine their considerations to the question of whether or not the employee had received different treatment; and

§ The tribunal should have considered whether or not the employee had received less favourable treatment.

The appeal was allowed.

§ It was held that the tribunal had erred by failing to consider whether the employer’s conduct had fallen within the range of reasonable responses available to it when investigating the employee’s complaints.

§ The tribunal had based its decision upon flaws found in the initial stage of the grievance procedure and despite the fact that these flaws had been corrected as the investigation went on, it had still erroneously found that the employer had unfairly dismissed the employee.

§ In addition to this, the evidence before the tribunal, including evidence that R had suffered similar treatment to that complained of by the employee, showed that the relationship between the employee and the two offending colleagues had broken down, and so the behaviour was not related to her OCD.

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

Therefore the employee’s claims were dismissed.

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

Source by Rosanna Cooper

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