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.

Hoping you have a positive outcome for tomorrows meeting ❤️

There’s a Twitter thread today by a disability rights campaigner and a posh London hotel debacle and she name checks her lawyer who she says is brilliant so maybe try to find it and put details aside in case it comes to that as it can’t be legal. I don’t know anything about HR and disability rights - But the thread caught my eye because this lady and her lawyer steamrollered this hotel.

@mowly77 could you share something that enables me to find that Twitter thread?
Thank fuck for people like you op, every workplace needs more of you.

[quote timeisnotaline]@mowly77 could you share something that enables me to find that Twitter thread?
Thank fuck for people like you op, every workplace needs more of you.[/quote]
It was by @flowergirl_lon on twitter - an absolute hero!

If they decide to fire her you don’t need to quit, but I wouldn’t agree to do the firing. Instead, make it clear to her you will provide her with whatever statements she needs when she lodges a discrimination complaint.

Wfh is a standard disability reasonable accommodation. This is especially true for programmers and web developers.

Working from home in this context could surely be considered a Reasonable Adjustment under the Equality Act 2010 especially given the precedent for this during the Pandemic. Your company would have to have very sound reasons for denying her this adjustment.

Get an access to work assessment & let them know how much it will cost for ramps, doors widened, a raise & fall desk to accommodate her wheelchair, an accessible toilet, space she can access for any medical & care needs, also find out roughly how much she would get for unfair dismissal & disability discrimination, present them with the figures. As well I would showcase any work she has done & tell them how much work she is producing & financially how much she brings to the company. Don't forget it can very easily get in the papers if there has to be a tribunal for unfair dismissal & discrimination which wouldn't look good for the company.

It’s a reasonable adjustment from the start of her contract, given the circumstances. It’s also extremely discriminatory and sucks the fat one. Completely understand your disgust OP.

Email the senior team member back, ask then to clarify this person has to be sacked because of their disability.

Look up the law, I'm not a lawyer but I seem to remember that individuals can be held responsible under the DDA / Equality acts if you can get that into an email it might make the senior team member think twice.

Something like this might help focus the minds of HR and the managers, particularly case 2.

www.peoplemanagement.co.uk/news/articles/top-employment-law-cases-tribunals-2021#gref

See also www.davidsonmorris.com/failure-to-make-reasonable-adjustments/

If you google "Employment tribunal", "disability discrimination" and "payout" there are some truly spectacular sums in some cases - in the millions. This could seriously damage a company, let alone the reputational damage.

Your company sounds like an appalling place to work if they seriously think this is acceptable behaviour. I'd like to say I'm shocked, but sadly after 30 years in the workplace with various employers, some okay and some beyond dreadful, and many of whom have become worse and worse in the past 12 years, it doesn't surprise me much.

Is this employment scenario in the U.K because it doesn’t sound like it. If this was the U.K. no matter how bad the leadership team, they would surely understand the law around disability discrimination.

The fact that OP has supplied very detailed information about her colleague, without concern that it is outing indicates that this scenario is unlikely to be happening in the U.K. or any other first world country.

I've not been able to track down the Twitter thread mentioned above, but there are another few cases which might help your "senior manager"'s awareness of precedent

www.msn.com/en-gb/money/other/woman-terrified-of-catching-covid-19-at-work-and-giving-it-to-her-husband-with-cancer-wins-unfair-dismissal-case/ar-AAVST0u?ocid=st

Another couple of examples at valla.uk/guides/examples-of-subtle-disability-discrimination which also has a link to www.gov.uk/courts-tribunals/employment-tribunal and their published decisions

Definitely join a union and get some advice from an employment solicitor though; bluntly, if they're behaving this way with her, how long before they start on you and others whose faces don't fit?

@bevelino what's that expression from Game of Thrones, oh my sweet summer child?!

In the last 30 plus years I've been in the workplace it has never ceased to astonish me how little knowledge there is of legislation amongst directors and other senior staff, and even HR so-called "professionals", (in some cases, especially so-called HR professionals). This has been particularly apparent in the smaller organisations I've worked at (though larger places are by no means exempt)...

@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.

Why can't they? Equality is not treating everyone the same, ie. You must all work from the office 3 days a week, it is about leveling the play field, her disability means she can't go into the office, it doesn't mean she's automatically incapable of doing the job. It shouldn't mean she can't work. I'd hope the vast majority of people would understand that this is a reasonable adjustment to allow her to work. I don't know anyone who would think it 'unfair' that their work allowed someone to work from home in these circumstances if they could do the job to a good standard. Which OPs already said she can.

Wow. If they do end up firing her, this would be a clear case at tribunal. You've done great by pushing back and not just firing her. Some managers I've worked with wouldn't have questioned it.

Hopefully HR will remind the higher ups of legalities and this nonsense won't go further. If worst comes to worst and you have an idiot dictator of a boss, just make sure your employee takes it to tribunal. From the cases I've seen this would be a slam dunk win.

I think its discrimination not to make reasonable adjustments for someone who has a disability. I think dismissal will result in a legal action and you should recommend that to your team member. Also, if she is a web developer why does she need to come into the office? All her work can continue to be done online like she has been doing for the past nearly 2 years. You could also sell it to HR from a health and safety perspective in terms of needing to do extra assessments, needing to buy extra (expensive) equipment or make adaptations so keeping her at home is better and avoids issues.

However on the other hand, it might be good for her to come into the office once in a while just to meet people. Have you spoken to her about this? It would be unfair to expect her to come in every day however for the occasional meeting her carer could help if the transport is not too difficult?

I don't think it is as straightforward an employment tribunal "win" as others are suggesting. Hybrid working could well be a proportionate means of the company achieving a legitimate aim, being team cohesion and improved company collaborarive working and communication, or similar.

Just because this person is a wheelchair user does not mean that with adjustments she and her carer could not attend the office. I think the Access to Work fund still provides funding, including sometimes for private transport?

I'd begin from an assessment of what support she would need to attend on x number of days per week and see if that is achievable.

Also I think it is hugely patronising of wheelchair users and those with significant mobility difficulties to suggest that working in an office building on the regular is somehow beyond them. It may require innovative solutions but it is far from impossible. Disabled people experience high levels of social isolation - and discrimination is exacerbated by people not being more visible in society

@Whatnextteletext

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 imagine they're going to lose a lot of staff anyway if that 10% is anything to go by. Makes them being willing to lose her even more insane

I don't think it is as straightforward an employment tribunal "win" as others are suggesting. Hybrid working could well be a proportionate means of the company achieving a legitimate aim, being team cohesion and improved company collaborarive working and communication, or similar. it absolutely is that straightforward.

The woman was hired in lockdown when everyone was working from home. She was hired because she is able to work from home when previously she wouldn’t have been able to go into the office.

Just saying straight-up that she needs to be fired is absolutely 100% discrimination as under the equality act the employer is required by law to make reasonable adjustment to accommodate an employee with a disability. In this instance they’re not even suggesting a workplace assessment but outright dismissal, and if they dismiss her it would be on the basis of her disability.

If I were her I would go straight to tribunal, and the press, and would name and shame the company.

But if I were hr I would be dismissing the manager who ordered the firing of an employee based on their disability.

@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.

I think you need to take this in:

Just remember when you’re on the call this morning that HR work in the company’s interests and they are not ‘on your side’. Happily, on this occasion I think you’ll find you have a common goal as they want to protect the company from losing thousands in a disability discrimination suit and you want to protect your employee’s job.

I think HR will stop the firing her bit. That would be discrimination.
I would not tell her anything at this point.
Once you have a calm chat with HR, have you asked her if she would like to pop into the office at some point? Maybe she actually would like to meet up with you all in person. If no 3 days a week, with the frequency that is good for her. But only if she is up to it.
Your company are being rather narrow minded here. But I do not think they can fire her without facing huge consequences. It makes no sense! I am not surprised you want to leave. They sound horrible, but I do think they will come down to their senses, at least HR will make them.

That's outrageous! Hopefully HR will see sense.