Claimant not discriminated against or harassed when it related to the claimant’s hearing problems, yet she was off work due to stress at work.

The claimant was employed as an Administrative Officer having started working for the respondent in 1995.  At the time of hearing, she was still working for the respondent.  The claimant had been referred to occupational health on four occasions relating to hearing difficulties and the effect it had on telephony. Adjustments were suggested to take the hearing difficulties into account.

In January 2023 a further occupational health referral was made on the basis that the claimant had changed role, the previous referral was over two years ago, and an updated opinion could support the claimant’s argument that she could not take telephone calls.  The claimant had been assured that she would not have to resume telephony. The claimant was not happy about the new referral and felt her disability was being questioned. After a meeting the claimant signed the consent form, and an appointment took place the following week.

The claimant went off sick on 2nd February 2023 telling her line manager that she had a cold.  She later attended the GP and received a fit note citing ‘stress in workplace’. A conversation took place in which she outlined some personal stresses as well as stresses relating to her new role and targets. The claimant remained off until returning in a different role in August or October 2023. As it was a long-term sickness the Absence Management Policy came into play. The policy was followed by seeking to understand whether the claimant was improving or deteriorating and whether there were things that the employer could do to bring her back to work. They had agreed to email correspondence but following a lack of response the claimant was called. This was ended by the claimant without any conversation.  The Tribunal found that this was not a discriminatory act.

There was the consideration of potential adjustments relating to the stress but not the hearing problems as that was not the reason for the absence.  The respondent asserted that there was no threat of being forced back into telephony which the claimant had not done since 2017 and that all reasonable adjustments had been made for that.

The claimant claimed disability discrimination and harassment as a result of this as well as the process relating to the absence management in which the claimant’s capability was assessed and a latter looking at disciplinary matters.

The Tribunal stated that the occupational health referral in 2023 was not detrimental to the claimant and was not tainted by discrimination. The reason for the formal procedure being adopted was due to the claimant’s lack of engagement.  There was a failure to consent to a further occupational health referral relating to stress at work which was the reason the claimant had been off.  This was a valid concern on the part of the respondent.  When the claimant was forthcoming about going to a further occupational health appointment the capability procedure was paused and went no further. This was rejected as being discriminatory.  It did not relate to her disability relating to hearing problems and in any event was not detrimental to the claimant.

The claimant’s case of harassment related to the occupational health referral as well as the contact when she was off sick. The Tribunal found that the contact did not amount to harassment on the grounds of her disability nor at all. The claimant’s further claim of a failure to provide reasonable adjustments related to being excused from telephony and that it should have been formally recorded in writing and be permanent.  The Tribunal rejected this claim as they found that the lack of a formal record and the fact it was not stated to be permanent did not put the claimant at a substantial disadvantage due to her disability. The Tribunal outlined that it would be contrary to good practice for any employer to make a reasonable adjustment permanent without review. The medical conditions, job roles and duties can change so they should be kept under review.

The Tribunal provides some useful guidance when they cite ‘good practice’ when it comes to reasonable adjustments. They outline that there should be review of those adjustments recognising that the job and duties can change but so can the nature of the medical conditions. Therefore, the claimant’s suggestion that the lack of a permanent adjustment being formally recorded was a failure – that was rejected by the Tribunal. This aspect can be a key takeaway for practice when it comes to reasonable adjustments and keeping them under review.

NI Tribunal decisions are available on the OITFET website.