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.

I don't dole out specific legal advice on MN for the usual professional reasons, but it sounds as though someone needs to talk sense to your company, rather than waiting for them to do the wrong thing by this employee and then suffer the consequences.

Access to work scheme

www.gov.uk/access-to-work

@Sapphire387

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.

This is brilliant news, thank you. I’ve not had much dealings with HR but I’ve got my fingers crossed they’ll take one look at the email chain and stamp on it.

For those saying my bosses are horrible: they absolutely are. They’re not developers, we’re a specialist team in a bigger business and they’re applying the rules for everyone to us, who do a totally different job to everyone else. There’s less than 20 of us so we’re a very small department who get ignored, hence our WFH feedback was totally ignored and we lost a ton of brilliant talent as a result.

If it does get squashed by HR, I still need to tell her don’t I? I feel like she needs to/ has a right to know what kind of company she works for but then we’re both going to need to leave because I can’t un-read it either

Or, if HR kill it dead, do I chalk it up to a mad email mis-fire from a group of idiots who think they own the world, ignore it, don’t tell her and move on?

@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.

Plus your employer has basically put it in writing that they want rid of her because of the disability. Wouldn’t want those emails to get lost now just in case they decide they feel like going down redundancy routes.

If your HR dept are on the ball they will recognise that this is disability discrimination and will put whoever has told you to sack her back in their place. If you’re disabled you are entitled to reasonable adjustments. It sounds like for this woman this would be doing the job from home and supporting collaboration with the rest of the team online on an ongoing basis. She’s been doing the job competently for almost two years, and it sounds like she has in fact been excelling. Have you been doing formal appraisals with her and will she have your positive feedback in writing? This would be helpful if your work tries to argue that they are letting her go because she’s not competent in her core role, rather than because she is unable to work in an office.

What does her contract say about where her place of work is? Does her contract say WFH permanently? This is something that should have been iron clad if you knew she couldn’t ever work from the office surely?

Your boss sounds like an absolute idiot not to check the legalities before threatening to sack her. He should be sacked himself!

I gather you’re all adult employees not kids in a playground wanting the sweetie the other one’s got. Ridiculous and lazy rationale that if a someone with a disability needs to stay WFH, everyone will want to.

This person has employment rights, she will win a unfair dismissal claim. Can also sue & win a discrimination claim & damages can be high. It’s already been shown she can do the job from home. There should be no issues at all.
She should asked if she wants to attend in person. She may want to - don’t make assumptions.

Don’t forget …. This mum net thread if found out can be used as evidence.

If it gets squashed I wouldn't tell her. However, you should both join a union if you are not already. You can't use it for this particular instance, but if some other idiot raises the issue again in a month/year's time, you will.

It’s discrimination! I doubt they can fire her on those grounds!

My husband works in IT and during the lockdowns they hired someone who lives 4 hours drive away. He’ll be staying on the team as long as he likes because there’s nothing those back in the office can do that he can’t from home! (Well there are some things, but very little! And they still have online meetings etc.)

Whoever is saying to sack her sounds clueless and an absolutely horrible person.
To get rid of her as she cannot work in the office due to her disability is discrimination.

@FuglyBitch

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

Absolutely everyone is - I must get 4 job offers a day on LinkedIn at the moment from recruiters and the salaries we’ve had to offer to replace the guys we lost by coming back to the office have been eye-watering.

Also, does your employer have a diversity and inclusion policy? If so, this is a chance for them to actually do something sensible to comply with it, rather than just having a policy everyone ignores.

You need to refer her to Occupational Health for an assessment to give strength the reasonable adjustments. I would also call ACAS (yourself) for further advice.

You don't need to have two years of service for a discrimination case, but she does have to prove she was treated differently to other people - which it sounds like it may be the case here (at least this is what I was told when I went through sex-based discrimination; it sounds insane but I don't have the outcome yet).

Document everything and save copies of e-mails onto a secure pen drive - it's amazing how quickly those e-mails vanish into thin air once people get wind there may be lawyers involved. Be prepared you may be asked to sign an NDA so get some advice on that too if you want to be prewarned about the process; I had this in a previous job with a colleague going through a discrimination case.

F

@JesusSufferingFuck22

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.

It's getting a bit tiring to see all the doors shutting in our faces again.

I'm glad she's got you fighting her corner OP, but dear god it shouldn't be needed.

If you are sure you will resign if they get rid of her then I would hand in my notice and refuse to sack her, and as PP have said, make it clear in the resignation that you are resigning due to their discrimination and that you will stand as a witness for her in a tribunal.

They will find a reason to get rid of her anyway now, so the sooner she knows the better.

@Sapphire387 is spot on IMO. I work as a trade union official too.

Don't rely on HR stopping the management being absolute arseholes. If you and your colleague are not trade union members get joined up ASAP.

ACAS can give advice but cannot advocate or represent either of you if your employer decides to take action.

Good luck @Whatnextteletext Give them hell.

Go to HR and ask for a OH referral. I also know of a financial institution who would hire her immediately if she needed work - DM me if you need details.

They'd really struggle to say this adjustment wasn't reasonable considering she's worked from home for nearly 2 years! What an awful situation.

@Whatnextteletext

I’ve asked HR about reasonable adjustments in my message to them so fingers crossed that comes to something.

She doesn’t know yet, I’ve not told her. The email came to me at 16:40 so she’d left for the day and I want to have a solution for her before we speak.

It’s insane. She’s doing brilliant work. I know their reasoning will be that our work requires collaboration which will be happening in person now we’re back in the office and she’ll naturally be excluded from this but it’s just not true - there’s no reason at all I can’t dial her in to team catch ups and chats so she’s in the room.

Collaboration can be done via zoom/team meetings, just as they were previously. I feel they are facing a huge discrimination case here and since they are being cunts about her employment, I hope they are done for every penny she can take them for under the equality act. Not your fault, but the company are dicks

Whatever you do don’t leave your job and don’t give her notice. Leave it to your HR dept.

@Geezabreak82

If your HR dept are on the ball they will recognise that this is disability discrimination and will put whoever has told you to sack her back in their place. If you’re disabled you are entitled to reasonable adjustments. It sounds like for this woman this would be doing the job from home and supporting collaboration with the rest of the team online on an ongoing basis. She’s been doing the job competently for almost two years, and it sounds like she has in fact been excelling. Have you been doing formal appraisals with her and will she have your positive feedback in writing? This would be helpful if your work tries to argue that they are letting her go because she’s not competent in her core role, rather than because she is unable to work in an office.

Yes, she’s had a formal appraisal every 6 months, monthly check ins (all written up and documented in a central portal) and even had an email with glowing feedback 3 months ago for a specific bit of work from the guy now trying to sack her

Yes, definitely do not rely on HR doing their jobs - they are paid by the management and in my experience are usually useless and have zero experience of most processes apart from things like payroll (and even then it was hit and miss on whether we got paid).

If you need an interim measure a GP fit note (if in UK) can offer work adjustments through the tick box scheme - but this can backfire too so I would look at the OH route; they do not have to except reasonable adjustments though.

@Whatnextteletext it’s great that your fighting for your employee (and rightly so!) but there’s so much specific detail in here, if they were to be on mumsnet would they not realise it’s about them?! I’d hate to find out my job was potentially at risk on mumsnet and it also might put you in a difficult position. You’ve had some great advice but probably time to delete the thread…

Yes, she’s had a formal appraisal every 6 months, monthly check ins (all written up and documented in a central portal) and even had an email with glowing feedback 3 months ago for a specific bit of work from the guy now trying to sack her

That all needs to be copied somewhere secure.