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.

If you do leave over this you could maybe poach her for your new role?

Definitely discrimination and will cost them a fortune. Point this out to them.

Things like this make me so fucking cross.

It is 2022. We have the technology to allow people with some physical limitations to make the most of their abilities and some tosser thinks your fantastic web developer needs to be in an office where she physically can't work.

Only thing I would say is.... sorry op. Your loss. Its 2022, if she good, she will be snapped up elsewhere. Good on her.

FML I hate shit like this so much. It's just So Unnecessary.

I think your options would be to a) say nothing b) speak to her as instructed directly in the morning but explain you think it's nonsense and that you are on her side and will try to prevent it or c) say nothing but once it has been killed dead imply nowhere in writing that she might like to do a subject access request (assuming they named her in the email to you?)

If you wait til it's killed dead by HR then I would absolutely assume that they will forbid you from talking about it and will guess you have mentioned it if she does a SAR but probably never be able to prove it.

I think then the only thing to think about as well is what you need in writing to cover your own back and if it does get squashed whether you can ever just conclude that the person in question is an unthinking idiot rather than a genuinely malicious one? Because if the latter it may make your position untenable. Did you go back to them directly pointing out that the "lack of suitability" was in fact disability discrimination - i.e. has the person in question seen it or just HR?

I worked for a company where I was left absolutely in the shit on a piece of work I was doing for a while plethora of reasons and at the end of the piece of work they had the cheek to write in my review that I shouldn't allow my disability to impact my work and we all have difficulties we have to manage so I needed to learn to do so too. By impact my work, they meant the single day I had off sick due to it. That was the day I absolutely decided my career at that workplace was ending. I stuck it out for some time to a point where I could leave in a way advantageous to me but I absolutely knew it then. I also made it my mission to make sure Every Single Person who I cared about at that organisation left. It took me 3.5 years but they all have now.

@Phascolarctos

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.

No no no - don't export anything out of the company, especially if they've got her details on. You don't need your lovely employers to come after you for data protection breaches

Put your concerns in writing to your senior management team and keep a copy. If they proceed it would seem highly likely that this case will go to tribunal and you need to protect your reputation.

HR professional here. This is disability discrimination and genuinely baffles me that people still have this thought process in 2022! She's been doing the role really well for almost 2 years from home, no concerns and in a sought after position when theirs a skills shortage. Just why??

From your perspective, keep copies of her reviews etc and the emails you have been sent asking to dismiss. You need to refuse to take any action, if you were to dismiss her you'd likely be the one having to attend the tribunal to defend the actions on behalf of the business!

Hopefully your HR team are decent and should shut this down immediately. If not, perhaps look to become a whistleblower so that you gain yourself some protection?

Those panicking about outing the woman in question, I think we can safely assume the OP is savvy enough to have changed a few details.

What a good friend/manager you are OP! I do know how you feel though as I once left a good HR role after 4 months as the guys I worked for were doing some things that were illegal in order to gain competitive advantage- things I felt were not good or safe for the 30 odd people there. I brought it up and made my point but they were adamant it was their way or the high way so I left.

No no no - don't export anything out of the company, especially if they've got her details on. You don't need your lovely employers to come after you for data protection breaches

I agree I wouldn't want to copy it off the company drives as it's a root to a roasting but I would be tempted to make sure I had copies saved down on my own hard drive so things couldn't just be deleted from shared servers etc.

@Breakfastofmilk I'm suspecting some details have been changed....

I'm reading this with some interest as I'm planning to enter the job market soonish with a disability myself - this would be pretty much my worst nightmare.

This will cost them thousands and thousands of pounds.

And if they are in the slightest bit tetchy with you, now or in the future, it will cost them even more as it is also extremely expensive to victimise somebody for whistleblowing/supporting somebody with a Protected Characteristic who is being discriminated against. So if you left as a result of this, you could also file a claim.

The most important thing is to ensure that there is evidence. For example, if they decided to have an online meeting telling her she has to come in because 'we can't give you special treatment', or that she would just have to make the effort like a 'normal person' (you wouldn't believe some of the shit that's said in meetings where they think there won't be any evidence), somebody setting up the meeting and accidentally hitting 'record' would be very inconvenient for them.

Seriously this. Yes, Web developer is a common job but how many Web developers in the UK do you think there are who are female, not just disabled but specifically disabled to a level that requires full time in home care and unable to work in the office, are in their 30s and who have been working for only two years??

Apart from the fact the OP could have changed them significantly. She seems unconcerned so let’s assume she has

Has your company not ever heard of the Disability Disagreement Act, later replaced by the Equality Act 2010?

Think they need to become familiar with the above sharpish.

I think you could push how competent and talented she is, 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.

WTAF. That’s like saying you can’t let one person be pushed in a wheelchair as it’s not fair to everyone else to have to walk and get sore legs!

What you have come out with is only correct if it’s a level playing field to begin with and no one has any disability, or everyone has exactly the same disability in the same way needing the same adjustments.

It’s direct discrimination and it’s illegal. I would advise them to join a union, and keep a record of all the direction from higher management as proof.

if she left/contract terminated, would you be able to employ her as a freelance consultant (on a more advantageous rate)

@sweeneytoddsrazor

I have no idea on any legalities but I think the key maybe you say hybrid working. To my mind that is a combination of home /office so not entirely wfh. I think you could push how competent and talented she is, 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.

It would be a faulty argument. Equality doesn’t mean EVERYONE has to be able access a reasonable adjustment or it’s unfair.

It means making access to something equitable to all. That means those who NEED adjustments to have equal access, get them (in this case to have equal access to employment and a job they are excellent at with an adjustment in place) and those who DONT need them don’t have the right to demand the same. They don’t need the adjustment that provides equitable access.

There is no ‘if we let one person do it we have to let all the people do it’ when it comes to accessibility. They don’t need it. They aren’t entitled to demand it.

The argument that she can't collaborate if she can't come in and will be left behind is absurd because she will be even less included if fired. By that token she can't work anywhere, which is plain wrong.

Why does everyone need to come in 3 days a week!! Why? We all WFH just fine!

Very short sighted of the company plus the media would have a field day if it got into the press 😳😳

I’ve just logged on to download her reviews and I’ve got a reply from the HR director.

They have spoken to the leadership team this evening and would like to meet with me on zoom first thing tomorrow morning and have asked that I don’t pass the email onto my colleague or talk to her about this in the meantime. They’ll update me in the morning and thank you for bringing it to their attention.

It reads like a well considered place holding response - fingers crossed that’s a sign they’re on the ball.

Thanks all, I can go to the meeting in the morning knowing the legalities and likely outcomes now which is very helpful.

I’ve decided in my own mind that if the outcome is no further action, I’m not going to tell her. On balance, I don’t think it does any good and it’s likely to make her feel othered and ‘less than’ which serves no purpose other than to clear my conscience. We’ve had chats before about her feeling like she can’t do things or needs more help from me than the others which isn’t at all the case - I don’t want her knowing she’s being protected or shielded by me when she’s fought so hard to be independent in the first place and is here completely on merit. She’d feel like we were keeping her because we couldn’t sack her rather than because she’s brilliant. Her confidence would take a real knock and for no reason.

www.scope.org.uk/

Just in case the tide turns on you for not doing as they’ve asked, look into ‘discrimination by association’

You’re a brilliant manager and colleague

Whatever the outcome is, at least you've helped her get her foot in the door with the training and work experience. It should make finding a new job easier for her, and I'm sure she'll appreciate that you've fought to keep her.