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AIBU?

Share your dilemmas and get honest opinions from other Mumsnetters.

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Original poster

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

554 replies

Whatnextteletext · 05/04/2022 21:14

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.

OP posts:

Original poster

Whatnextteletext · 05/04/2022 22:58

(Also, in our industry there are holding companies that exist that hire devs who want to freelance and charge them out as temp staff on zero hours contracts to businesses so they’re technically employees rather than self employed. We pay the holding companies, the holding companies pay their employee. They have access to employment rights in the same way as an employee would but are charged out at freelancer rates plus the cut that the holding company takes. It’s shady as hell!)

OP posts:

BlooberryBiskits · 05/04/2022 23:02

@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.

^ didn’t bother to read the full thread because THIS

Unless she, and every single one of her friends and family are fools, you’ve got a tribunal on your hands (she would have 3 months to raise a claim if dismissed )

Maybe your company are happy to have a tribunal/pay her off?

I’m sad for you OP, you sound thoroughly decent. Your employers: not so much

Shoemadlady · 05/04/2022 23:05

Speak to Acas and your legal team at work. I also work in HR and I'm pretty sure that if she's fired, she'd be well within her rights to take you to tribunal. You cannot discriminate due to a disability and her needs must be taken into account. Your senior bosses are in VERY thin ice here and if I were you, I'd insist that they leave you out of the equation.

user1471447863 · 05/04/2022 23:09

Sadly some companies, even when normally very considerate and accommodating, will do not what they know and are told is legal, but will do what they think they can get away with.

Hopefully HR will have spelled it out in no uncertain terms that carrying out their intentions is extremely unwise and hugely risky both in terms of cost and reputational damage.
They may of course get away with it, it would after all require her to want to pursue a discrimination claim and not everyone has the headspace or will and support to do so, never mind the added complication of doing so when effectively housebound.

me4real · 05/04/2022 23:11

This is hypothetical maybe, but on she should be eligible for/receive direct payments from the council or other help.

I have a friend who's a lawyer with a very severe disability, and her PAs/carers assist her in the workplace and on journeys. She can't get herself out of bed without a hoist from others, get to the loo herself, can barely eat herself. The PAs assist her with all this and whatever else she needs in the course of her job.

I understand that most people with disabilities mightn't be able to manage that though (I have a disabiity and can't work myself.)

me4real · 05/04/2022 23:12

*on top of her PIP

Livelovebehappy · 05/04/2022 23:13

Was there always going to be a chance that people were going to be pulled back into the office though? Most people in lockdown were aware that wfh was temporary. And in that case I think it was a disservice employing her at all, as it sounds like you were well aware that working out of the home was was a no go for her, yet still employed her anyway, knowing there was every chance wfh was not permanent.

WiddlinDiddlin · 05/04/2022 23:16

Fingers x for her, and you, you sound fab and she sounds brilliant.

I can't honestly see that it matters what her contract says, if she was hired on the full understanding she could NEVER attend the office, the contract could say 'wfh/hybrid/work on the bloody moon'. The fact it was clear she could never work anywhere else than home would over-ride anything else.

Access to work... is a pain in the arse and it will be long past June before she even gets an appointment to talk to anyone there/or you do (it'd be you probably not her, I deal with them direct as im self employed) - they would pay for adjustments to work, for example a PA to fetch and carry or an office only wheelchair or travel to work..

They won't pay for medical/ personal care stuff though - so for example if personal care is done by a partner at home (As mine is), but that partner couldn't do that personal care outside the home, they wouldn't pay for personal care outside the home, she'd have to pay for that.

If all else fails and they stick to their stupid illegal guns - quit, tribunal and then set up your own company with her! Two fingers up to them!

LeoOliver · 05/04/2022 23:17

This is very difficult position to be in. I would tread very careful. If it comes to dismissal, I would encourage you to get your managers to write the letter.

Myyearmytime · 05/04/2022 23:21

Assces to work should be contacted by you so you can her in office if need be

Pinkpepper79 · 05/04/2022 23:23

This may fall under the disabilty discrimination act. This is blatant discrimination. She has proved that she can do the job. Alao look into disabilty confident work places.

Aaaabbbcccc · 05/04/2022 23:23

@Whatnextteletext

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.

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?

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.

Consult a solicitor

NeverDropYourMooncup · 05/04/2022 23:27

@Livelovebehappy

You're seriously saying they shouldn't have hired her in the first place as soon as she disclosed a disability?

Really?

spudjulia · 05/04/2022 23:29

Sounds like the company my DH works for . He's actually just got a new post and resigned for this exact reason.

NarcissistsEyebrows · 05/04/2022 23:31

An aside but please do consider joining a union.

I think of it as a payment, only ~£18 pm for anyone earning over approx £45K, which pays for people to represent others who do need help.

Hopefully you don't need help in this instance but you might in the future, and your payment week definitely be helping others who need help.

It's a cross between a charity for withers who need it and insurance in case you ever do

Getoff · 05/04/2022 23:35

Wondering if this thread is a wind up, hiring a perm straight into a freelance position would screw her for IR35 which you should know OP

I know OP has responded by saying the scenario doesn't apply, but this was an utterly bizzarre complaint. There's absolutely nothing wrong with being in an IR35-caught contract. It's not as lucrative and flexible as a non-IR35 one, but that isn't the alternative. Being an employee on much lower pay is.

Fillybuster · 05/04/2022 23:38

OP, you sound like the best possible type of line manager....good for you!

I'd hire your developer like a shot...along with everyone else I'm desperate for bright, trainable devs as the moment and she sounds great! Would love to have you on board as senior leader too, to be honest (& I'm sure I'm not alone there, either)

Fingers crossed for you both

VanGoghsDog · 05/04/2022 23:39

@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.

HR departments are shitty but a union rep gives incorrect advice......🤷🏻‍♀️

It is BOTH direct and (potentially) indirect discrimination.

It would be direct discrimination to dismiss her for this. The dismissal would be a direct result of her disability.

It would be indirect discrimination to apply a practice, criteria or provision to everyone that affects this group adversely. But, indirect discrimination can be defended if it is a proportionate way to achieve a legitimate aim. Basically, it can be justified in some cases. (Though, quick warning fur employers - it's not easy to retrofit a justification, you need to have genuinely done it for that reason and be able to show this)

Just to clear up another misconception - discrimination on grounds of disability does not need a comparator (unlike, say, race discrimination).

And while it is correct that she does not need two years service to bring a disability discrimination claim, she STILL needs two years service to bring an unfair dismissal claim - they are separate claims.

Also, no, it's not automatic unfair dismissal. There is a huge list in the Employment Rights Act 1996 of dismissal grounds that constitute automatic unfair dismissal (thereby not requiring the two years service) and disability discrimination is not one of them, because it is a separate claim in its own right (in the Equality Act 2010).

www.gov.uk/dismiss-staff/unfair-dismissals

Quietyes · 05/04/2022 23:42

ACAS as everyone has said and tbh maybe telling her to give her some advanced warning if she's going to have to fight this.

Also on a sodenote if anyone wants to share any schemes/companies that do wfh entry level training jobs, this tech minded disabled person would be very grateful!

Sonaftersonafterson · 05/04/2022 23:45

If her contract doesn't explicitly state her place of work then your employer cannot do this. It's discrimination and they know it.

Teenagehorrorbag · 05/04/2022 23:46

Don't worry. I'm sure HR will come back and say she can carry on. If her contract doesn't stipulate office working you can't enforce it (although it should say one or the other for the purposes of claiming travelling expenses - everyone's should).

Plus it would certainly be a reasonable adjustment. given it's worked up until now.

I'm amazed the firm are being so short sighted - if she is such a good worker they should be keen to keep her! But anyway - they can't change her contract terms unless its reasonable and consulted etc etc so they have no grounds. Unfair dismissal and disability discrimination could be very expensive!

Palavah · 05/04/2022 23:51

The other thing I suggest you do is outline for your bosses the sunk cost in recruiting and training her, and the likely cost of recruiting, and onboarding/training a replacement, plus business impacts in the meantime(versus the value she could deliver if a resonable adjustment is made). Might help them to see sense while the legal/HR wheels turn.

KloppsTeeth · 05/04/2022 23:51

How awful that anyone in management would think that this is an acceptable way to treat someone.

Interesting about developers being in short supply. DH is web developer/manager and couldn’t find much last time he looked, preCovid, so I will tell him to get searching!

BrokenNHS · 06/04/2022 00:00

Now I’m thinking it’s ‘if she goes, I’m hiring her back as a freelancer and paying her a freelancer day rate’

I know you said this was a joke but what a brilliant idea! 😄

saleorbouy · 06/04/2022 00:21

I think that since the company employed her with full knowledge of her care needs and have benefitted from her skills that they now stand in a precarious position if they demand her to be fully mobile and bring her carer I to the office.
I would seek to find an amicable solution as this is unlikely to have a great outcome at tribunal since the working arrangement has been fine for the past two years and her role has been demonstrated to be perfectly able to be conducted from a WFH stance.

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