Swansea Solicitor, Simon Thomas of Hutchinson Thomas, specialises in Employment Law Tribunals and corporate HR advice. Here he discusses a recent case concerning reasonable adjustments for disabled workers:
Employers are legally required to make reasonable adjustments in the workplace to accommodate a worker with a disability or an illness that constitutes a disability.
One thing my years working as a Swansea solicitor has taught me: disability discrimination claims don’t present an employer in a good light – they are bad for both morale and PR, and the employer has usually lost a good employee in the process.
Budget airline Ryanair discovered this first-hand when the employment tribunal unanimously ruled that they repeatedly discriminated against a flight attendant.
Margita Dworak had worked for Ryanair from 2004 as senior flight attendant until she resigned in August 2018, and had an unblemished record with the company.
In 2017 the claimant suffered a seizure and was admitted to hospital in Poland, advising Ryanair on 10 July that she would be absent for the following week. On 13 July, Ms. Dworak was diagnosed with a benign neoplasm – a non-cancerous brain tumour – and submitted sick notes throughout July and August without divulging the full details.
On 28 September, a Ryanair HR officer called her, and she disclosed her diagnosis. On 2 October, Dworak was admitted to hospital again and her brother provided the employer with the original hospital discharge summary and a consultation note from a neurologist. At this point, the Tribunal considered that Ryanair had factual knowledge of Dworak’s disability caused by her brain tumour.
On 25 October. Dworak was declared fit for work (but not to fly) and asked for a phased return to work with amended ground-only duties, however as Dworak was not medically certified as fit to fly, Ryanair refused to allow her return.
Dworak attended an in-person meeting on 1 November and again asked to return to work on ground-only duties. A statement of fitness to work from her British GP also recommended a phased return to work, altered hours and amended duties, but Ryanair refused to allow her return.
Between 14 November and 29 December, Dworak wrote three times to Ryanair, reiterating her wish and fitness to return to ground-only work, but was advised that while a base supervisor role was available at Stansted, she would have to fly and could not do this job.
Ryanair later advised by phone that there were no ground duties available at Stansted but advised her she was “free to check” the careers section on the Ryanair website, and told Dworak her occupational sickness benefit and statutory sick pay would be ending soon.
On 5 Jan, Dworak alerted Ryanair to an advertisement for an office support operative, which she highlighted could amount to suitable alternative employment, and accordingly reported for work on 6 and 8 January. She was told twice to return home as there was “no work available” for her.
Ryanair advised on 11 January that it was “unreasonable” to expect Ryanair to “create a ground-based job where one simply does not exist”. She was also told to ‘apply for the cash office support role through the application form’ as the job could not be allocated.
Dworak lodged a grievance the following day, receiving no response, so resubmitted her grievance on 10 February stating Ryanair had breached the Equality Act by failing to carry out a risk assessment, make reasonable adjustments or consider her for other roles for her within the business.
The tribunal found the grievance outcome, which was sent to Dworak on 11 April, ignored the complaints that Ryanair had failed to recognise she had a disability and was thereby protected by equality legislation. Dworak eventually found a role in a different business and resigned from Ryanair.
As a Swansea solicitor, I often advise our corporate clients on issues like reasonable adjustments. In this case, the following would have sufficed:
- re-assigning Ms. Dworak to ground-only duties,
- reducing her hours and
- working with her on a phased return to work
However, Ryanair had not done any of these things and the Employment Tribunal unanimously ruled in favour of Dworak, finding that she was discriminated against and constructively dismissed – and made it clear that simply asking her to look on the website and apply like anyone else for a ground position was not making any adjustment.
Judge Tobin explains:
“To recruit an existing employee through an open, standard recruitment process was not making any adjustments whatsoever because this puts an individual with a disability in the same position as an external, non-disabled candidate. It does not even afford a long-standing employee with 13-year experience and an exemplary record… any priority whatsoever.”
Damages will be discussed at a remedy hearing, however this is a typical example where a company has attracted negative publicity by failing to support an employee going through a temporary disability.
Ryanair plan to appeal the decision – in my legal opinion, their appeal is likely to fail. However, their biggest failure is letting go of a loyal employee who didn’t want to be off sick and repeatedly asked them to help her to return to work.
About the author:
Simon Thomas is a Partner with Swansea Law Firm Hutchinson Thomas