Hired a disabled woman in lockdown who I now have to fire

[Whatnextteletext]

During the first lockdown I hired a physically disabled woman into an entry level role on my team. She’s in her mid 30’s but it’s her first job because pre-pandemic, she couldn’t work out of the home due to her disability and work from home opportunities were few and far between. She is a wheelchair user who lives with a full time carer who takes care of he personal needs (this is relevant to why she couldn’t work out of home) and prior to lockdown, she lived on her disability payments alone which from the sound of it was very hard going.

I hired her into an entry level web development role with on the job training and it turns out she’s wicked smart and a phenomenally fast learner. I’ve put her through some web development training and within 18 months she’s now a pretty decent developer and by far the most competent of the cohort I hired along side her. She’s also lovely and we get on really well.

Anyway, when I hired her, my company were committed to WFH and hybrid working long term. Now however, they’ve backtracked and everyone is back in the office 3 days a week mandated.

Today I had an email from the senior team asking why this employee hadn’t been back to the office so I explained that she’ll be working from home forever given the circumstances (that they’re very aware of!) and the reply I got was that she’s no longer suitable for the role now that the expectation is work from the office and I needed to let her go.

I hit the roof and went straight to HR who are looking into this now, but I’d like to know from here what is likely to happen??

If they come back and say she’s got to go and I have to fire her I’m handing my notice in on the spot, that’s a given. How likely is that though? Surely it’s discrimination?

It’s also really stupid. It costs a fortune to train new developers properly and I’ve invested a huge amount of my time into her. It’s a complete candidates market at the moment too - developer roles are everywhere, it’s really hard to find ones with the right training and she’s good enough that with a bit of off the record support she could freelance fairly easily.

Her contract doesn’t specify a place of work or working model and there is no reason on earth she couldn’t perform the role perfectly adequately from home. We all did for 2 years.

Does anyone know where we stand legally on this one? She’ll have 2 years service in June.

Sounds to me like they are sacking her because she is disabled. If she can do her job effectively, with wfh a reasonable accommodation for her disability, then sacking her for not being able to attend the office is discrimination.

but I suspect your employer will say that they can't let 1 person work entirely from home if everyone else has to spend sometime in the office

No one else has disabilities though. So they are all capable of hybrid working.

I wouldn’t rush to hand in your notice o/p, if they do fire her she may need support from within. I’d be advising her to union/lawyer up.

If she can do the job from home this would almost certainly be unfair dismissal and disability discrimination. I agree you should try to make them see this. I know you say you would resign if they disagree but you would also likely be protected from any detriment for raising the issue if you did want to stay

That's so short sighted of your company. Many disabled people (I'm one of them) found their lives expanding during lockdown and were less isolated because of zoom classes and events etc. Now because everything is "getting back to normal" we are back to getting more isolated and excluded.
It reeks of discrimination. I don't know about the legality of it all but I really hope HR get this all sorted for her. What a shitty thing (for your company) to do to someone.

She doesn’t even need two years service to take legal action based on discrimination relating to a protected characteristic.

I’m assuming she’s declared her disability formally during the hiring process?

Doesn’t sound like your employer has got a leg to stand on, tbh. They’d need to be able to demonstrate that in person attendance was absolutely essential to the role in order to enforce this change of heart, which clearly it isn’t.

Hopefully HR will tell whoever came up with this terrible plan to STFU and nothing more will be mentioned about it. But I wouldn’t put it past most organisations to try the slow burn of bullying her out/finding a gradual catalogue of small cumulative faults with her anyway.

So glad you are fighting her corner instead of her having to do it alone!

They offered people a wfh job on the understanding it would be permanent and now want to fire someone because they've changed their mind on wfh roles and that person is disabled and cannot work outside of the home?

Your employer is going to liable for a very embarrassing case of unfair dismissal against them and a huge payout.

The other option is for her to agree to come in to the office - then list all the adaptations needed for that to happen. Letting her work from home will be far cheaper for them

This. If she says she’ll willing to come into the office, but they need lifts, accessible/kitchens/toilets, access for her carer, etc etc.

I think they’re worried because there was a huge amount of resistance from the work force to come back to the office. Developers are often natural introverts and certainly our workforce really enjoyed WFH. Our return to work survey has less than 10% of respondents saying they wanted to return to the office at all yet the company pushed for it. I think their worry is if they agree my colleague can WFH, then they lose the argument as to why no one else can.

I’ve worked in HR and this will not turn out well for your company— and if this lady is whippersnapper sharp would make a very interesting case in the press too . I personally think fully working from home isn’t ideal for many roles or indeed all people but in this case that role isxand she is doing it well— the 2 year rule doesn’t apply in certain instances of unfair dismissal and disability is one of them. Your bosses are c by the way.

How many others in the workforce are disabled enough for wheelchairs and care OP? I bet none— so this is a unique situation and bugger what others think

They hired her knowing that she was disabled and couldn't work from the office! She would win an employment tribunal and so would you, I think, have a case for constructive dismissal. I'm not an expert so don't take my word for it but they're putting you in a position where you are being made to do something that is on shaky ground legally or step down.

I really admire that you are standing firm on this and not compromising your morals.

Trade union official here. Very likely to be a disability discrimination case - 'indirect discrimination' (application of a policy to all staff that has a particular adverse impact on her because of her disability).

I'd like to say HR will sort it out - hopefully they will - but some HR depts are shitty. Have you got a trade union there? If not, ACAS are helpful.

As others have said, this would fall under 'automatic unfair dismissal' as a disability case and she would not need two years' service.

Hope that helps.

Employment law solicitor here. Sounds discriminatory to me.

@Crikeyalmighty

How many others in the workforce are disabled enough for wheelchairs and care OP? I bet none— so this is a unique situation and bugger what others think

There are 2 other physically disabled colleagues that I know of, but neither require the level of personal care that my colleague does. Both are also able to get to and from work independently too whereas my colleague couldn’t.

The willingness to come back but requiring a load of adjustments thing is interesting - would she need proof of the adjustments she needs? Like from her consultant?

That's crazy. We can't hire good Devs for love nor money!! We've as a result for a team that is entirely refusing to come to the office and there's nothing much anyone can do about it. Perfect job for her, hope it all works out.

Could they put in reasonable adjustments to enable her to work in the office? Plenty of physically disabled people do. If she needs personal care, a suitable space would be needed

@MajorCarolDanvers

Well that's an industrial tribunal waiting to happen if I ever heard one.

I would strongly advise you speak to ACAS. You can also be held personally liable as well as your employer.

Legally she has full rights now despite her length of service because she has a protected characteristic- her disability. Dismiss her on these grounds and she has a case for discrimination and unfair dismiss.

Get proper advice.

Your employers are absolutely morons I'm afraid.

This.

She is disabled not an introvert... i also understsmd the issie i work in tech and boy.... people do not want to go back to the office

I'd be advocating/ challenging hard. And in writing

Reasonable adjustment.
Absolutely no reason to go to office when it's worked really well so far.

Absolute discrimination based on her disability - I hope your company come to their senses and let her continue to work from home as a reasonable adjustment.

I’ll hire her, language dependent - honestly we’re desperate for developers

Of course your company could still let her WFH and others have to come into the office. My DH has just said that there is one person in his firm who has been told they don't have to come in based on medical grounds. There's been a few grumbles as person is not disabled but it has been accepted by all that some people are able to come into the office and some are not.

“There is no limit on the compensation that can be awarded in a discrimination claim.”

Hopefully your company’s HR/legal team are on the ball because that could be a very expensive mistake.

She could have an access to work assessment by DWP.

They will assess what she needs to return to the office and how much they will fund towards it.

Slightly different but our organisation has done a similar u turn on homeworking. We have people who for (less compelling) reasons - mainly childcare, petcare and apathy (I'm possibly being unfair with the last one) say they're now unable to come to the office. Official HR advice is that they have to submit flexible working requests which may be agreed depending on business need.

However our staff are a bit different as they did all work in the office pre COVID but now don't want to, your developer would never have been able to work in the office and clearly would not have applied for an office based role. It's unfortunate her contract didn't stipulate she was a ft homeworker but hopefully this can be resolved.

You need to read the disability discrimination act and the equality act. She could take you to the cleaners.