Monday, 15 September 2008

Housing Association suffers humiliation

Mr Donal Hughes v. Stafford & Rural Homes (1), Karen Armitage (2)

Ahhh, more happy tidings in the world of social housing...a Midlands based housing association has had a claim for unfair dismissal and discrimination contrary to ss3A(1), 3A(2), 4(2)(d), 4(3), 4A and 55 of the DDA 1995 upheld by the Birmingham Employment Tribunal. Although the remedy hasn't been finalised I understand, the main heads of award total some £730,000 (yes that's Seven Hundred and Thirty Thousand Pounds).

I am no employment lawyer (thankfully) but even I know that this is pretty big stuff.

On 29th May 2008 Stafford & Rural Homes, based in Stafford, where found to have unfairly dismissed their Director of Housing, a Mr Donal Hughes, in 2007 following a lengthy grievance and disciplinary process. The judgment runs to some 90 pages and some 82 issues were agreed by both parties (if I say there was a 81.1 to 81.15, you'll the idea of the size of the case) covering the better part of 3 years and having been heard during the whole of April '08 in total.

The long and the short of it is that SARH, and their CEO Mrs Karen Armitage, failed the Claimant when he began to show signs of stress-related illness (which ended up in him suffering from reactive depression) and instead of helping the Claimant via occupational health referrals and the like, the Respondents sent the the Claimant a disciplinary letter and unfortunately the Claimant promptly suffered "a total breakdown" and was attended by a Crisis Mental Health Team. Since that time, the Tribunal point out that from the 6th February 2006 the Respondent's have conceded that Mr Hughes was a disabled person within the context of the DDA - the Tribunal had extended this back to the 5th December 2005.

The Claimant eventually lodge a grievance and the "independent investigator" turned out to investigate both the disciplinary and the grievance matters, under the direction of the HR Manager of SARH, a Mrs Carollyn MacDonald. Prior to interviewing the Claimant, the independent investigator agreed to expand the investigation and interviewed a number of managers in breach of the JNC terms of service I believe.

The Respondents also failed to make reasonable adjustments like continuing the C's salary at a full pay, which is within their power. They actually reduced it by half within 6 months. They also discussed internally whether to continue to fund a lease car for the Claimant, the difference being negligible between carrying on the lease or providing the claimant with his contractual entitlement funds for a car. The Claimant relied on the car to attend counselling sessions that aided in his coping and recovery from his stress-related illness.

The Respondents also breached the reasonable adjustments required by the DDA by making sudden changes to the prescribed procedure and format of the grievance and disciplinary hearings. On one occasion the grievance panel refused the Claimant a right to call witnesses, and on another occasion the disciplinary panel refused to allow witnesses or questions relating to the Claimant's illness.

The Tribunal also take issue with Armitage's response to the Claimant's detailed grievance which included calling him a liar/blatant liar on 28 separate occasions, all highlighted in bold type in the document. This constituted an act of victimisation. The comment that, "[f]urthermore the tone and content of the response constituted an act of harassment because Miss Armitage remained unable to accept that the Claimant was a disabled person and was therefore unable to make any allowance...".

Even where the Claimant was visibly stressed at the grievance, and his representative had to complete the reading of the statement the grievance chair, a Mr Alan Perkins, told the Tribunal that the claimant did not appear to be ill at the hearing and that he implied that he seemed to be feigning ill-health. Given the invisibility of the claimant's disability the panel ignored it.

In response to the claimant's grievance, a protected act under the DDA by reason of his disability, Miss Armitage attached an extra to allegations (about vexatious remarks and irretrievable breakdown of relationships) to her disciplinary action against the claimant. At one point the CEO highlights the Claimant's application to the E.Tribunal as justification for the disciplinary and that he couldn't return to work. The tribunal highlights both as acts of victimisation and harassment of the claimant - creating an intimidating environment. [Incidentally the tribunal point out that Armitage talks about the Claimant's "alleged illness" at his disciplinary hearing, and that the Chair then did not allow the Claimant's representative to question Armitage on her knowledge of the illness. This was deemed irrelevant for the purpose of the hearing].

The Tribunal also found that at no stage did the Respondents' ask occupational health to advise on whether the claimant was a disabled person.

I could go on, I may have a go at a full post when I get a chance later, but I thought I would highlight some sections and areas.

In terms of the award, the tribunal at a separate hearing recently, found the following:

- injury to health of £12,750
- injury to feelings of £15,000
- Miss Armitage to pay £5,000 for aggravated damages
- basic award of £4,350
- interest totalling some £11,000
- loss of earnings of around £80,000
- loss of statutory rights = £250
- interim payment of £50,000

- then there is a reduction imposed on the future loss of earnings and pension loss ...this reduces the total to nearly £600,000 - I am crap at ogden tables so don't ask me!

- Overall the final award will be in the region of £730,000!

Sometimes I the hearing(s) have lasted in excess of a month, and given various tribunal references to "voluminous" paperwork, and the "sixth bundle" folder this must have cost a bomb in legal advice.

Close to a million pounds maybe? Good to know money's being spent pursuing worthwile legal defences...


house said...

Employers really have a lot to learn about depression.

I had serious can't actually get out of bed, perform basic functions like cooking, washing let alone get a job depression for 4 years so it's a subject close to my own heart.

The trouble is that people often say they are suffering from depression when they have had a bad day and this can contribute to some people's misunderstanding of what actually constitutes a depressive illness.

Ethan said...

I think people have to draw a line between the word "depressed" and the medical condition "depression". The aren't always the same thing.

But that's why you have HR professionals to tackle this for you on the front line and then occupational health to give more advice...shame no one told SARHs :P

Nearly Legal said...

That is quite a story, and one hell of an award. It sounds like appalling behaviour from the RSL management, complete with 'Star Chamber' disciplinary.

'Socially responsible' not-for-profits always seem to have the worst employment practices (not just RSLs). I suppose it may have something to do with for-profit businesses actually recognising the business risk in fouling up employment matters. NFPs don't think that way.

I was going to do a Naughty Step post on this, but your coverage says it all, really. Then I found another RSL messing up to point at instead ;-)

James said...

RSLs are meant to have equality and diversity policies, from the sounds of this they didn't follow theirs! I can't believe a Chief Exec in housing has been found personally guilty of Victimisation and Harassment, never mind Disability Discrim! What has the Housing Corporation to say about it all? Or are they being their usual toothless selves?.....I wonder who is paying her legal fees?.....Interesting stuff

Ethan said...

@NL: OK so I enjoy the landlord side of our glorious profession, but sometimes I am astounded by their stupidity.

@James: I keep expecting this to break in some sector of the news, but no one seems all that interested which is surprising given the money thats being bandied about. As to her legal fees, I guess they are seriously entwined with the RSL's own legal fees, so she isn't paying anything - poor Stafford tenants....

Pete said...

I wonder if the decision makers at the Housing Association defended this because it is not their money? It is surprising the Housing Corporation didn't intervene bearing in mind the Ujima fiasco...Ethan why don’t u ask them to explain why no one stopped our public money being used to victimise a disabled person?

Ethan said...

I am not sure that would even work, in cases of such serious discrimination, the cost to the tenants will always rise sharply the longer the proceedings go on for...

As to asking them for further info, I don't think I could coax that particular answer from them - although I really want to know as well!!

J.G. tenant said...

"Already aware of matter and noted"