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 believe the law is that the company has to make adaptations to the work environment so that this person can do their job. (But that may depend on the size of the firm.) Also, that if for some reason they deem this not possible, then they have obligations to offer alternative options.

I think you should definitely phone ACAS (provides free and impartial advice for employees etc) for some provisional advice. EG if you decide to leave it may be that you can do it under the banner of "Constructive Dismissal". I think if this firm wants to ride roughshod over you both then you owe it to yourself to at least try to "make them pay" for their actions.
I think we're all agreed that the company is behaving appallingly.

I think that HR will be right on it, and tell your Senior Team wot's wot. But if they tell you you have to fire the woman, I think you'd be well advised to tell them you need to take legal advice first as you don't want to compromise your position without checking. (This will give you more time to get the info you need from ACAS.)

I hope this info helps, and that you manage to get a fair deal for this colleague, who surely should not be treated so poorly, and for yourself as well.

Good Luck

HR director here; companies of any size need to make reasonable adjustments. They'd need to articulate clearly in what way working from home for this lady is unreasonable. Discrimination cases are uncapped in terms of tribunal pay outs so could be very costly, even if they manage to settle.

Your HR team should be asking the decision maker to justify what the business reasons are that means WFH is no longer reasonable, when it has been for three years.

Can this lady leave her home at all? Perhaps she could get an adapted taxi to a monthly team meeting, or in the office once a week if face to face presence is genuinely needed in order business objectives can be met. It may be a negotiation about what she can and can't do with both sides meeting in the middle.

You can fire disabled people where adjustments aren't reasonable and they can no longer carry out their work/business won't function without them there, but for it to be considered a safe dismissal, your work will need to have shared with her and you what is/what isn't reasonable and ficne alternatives.

It will NOT look good her direct manager is saying "it's fine, she can obviously WFH as she has been doing the last 2 years and hey, she's also great".

Given alternatives*

So glad she has you in her corner. You sound like a great boss.

@Chippingin2 You have missed the point where I said secure; securely storing data is not a data breach FFS. Line managers should always have copies of appraisals etc. for situations just like this - few do.

The fact that she has been working at home for the past 2 years is clear evidence that the reasonable adjustment which was in force for the entire company would still apply to her. They’re going to find it impossible to prove that working from home is not a possibility when the whole company has been doing so for 2 years.

Even wrt team meetings, this again depends on whether the building is accessible. If there is e.g. no lift or there are narrow doorways etc then it’s entirely possible that attending team meetings wouldn’t be a possibility, and again, given the company have managed not to have face to face meetings in the past 2 years, they’re going to find it difficult to prove that this is reason to dismiss this person.

Just because face to face is preferable, doesn’t mean that in circumstances it’s entirely necessary.

When you point out the consequences, if hr have half a brain, they’ll advise that it’s unwise to proceed.

I just love this pic.

www.mumsnet.com/uploads/talk/202204/medium-541791-download.jpeg.pagespeed.ce.gHapz0Phkp.jpg

Hope this works out for her, seems absurd. She sounds like she brings a lot to your team .

The fact that she has been working at home for the past 2 years is clear evidence that the reasonable adjustment which was in force for the entire company would still apply to her. They’re going to find it impossible to prove that working from home is not a possibility when the whole company has been doing so for 2 years.

This isn't automatically true. If there is a genuine reason why when there was no other option WFH was reasonable, but now it isn't, then that's legal. My firm employes managers of supported accomodation support - they WFH during the pandemic but are back full time now because the residents need physical presence at their accomodation. When there was no other option, telephone or email support was given to ensure there was something in place, but they are back full time for Apr 22 (unless we have put in place reasonable adjustments for those with confirmed disabilities).

The place to start from is a conversation about what she CAN do. Don't start with assumptions her wheelchair obviously won't fit through the door. The questions need to be asked, reasonable adjustments considered and if unreasonable, written explanation for exactly why this is.

Your company will struggle on that final point from what you say OP.

I hope it goes well, OP. It's lovely to see someone fighting for a member of their team like this.
Of course, if you do ever decide to resign, and you have plenty of offers you could always take her with you. My company hires whole teams a lot, it really works well.

How ridiculous of your company. Hopefully someone will see sense and she can carry on as she’s been doing. Good luck!

Whatever you do, don’t leave because the company are being shits.
Keep everything in writing. Be straight forward with HR and may be worth talking to any bodies like local council - they used to have access to work officers to help companies make reasonable adjustments for disable employees - and maybe any charities that deal with her particular condition.
Is your company good with maternity policy? They obviously don’t understand the law. You can set out to HR why sacking her is going to be so difficult but also set out why she is an asset to the company

Just wanted to say good luck today

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I have n’t read the whole thread but please keep every email you send or receive about this employee in case it ends up in court.

HR should respond in a way that protects the company from pay outs by adhering to the law so hopefully you’ll get a decent response today

Good luck

Good luck today OP. Not that you’ll need it because not only are you in the right, you also sound marvellously kick ass and I would love to have you in my corner!

I would have thought that constitutes disability discrimination. She has amply proved herself competent at the role and proved it can be done successfully from home. The company has invested in her training and you as her line manager argue she's the best you've hired so far.
Their remit to all work from the office again is a choice - the quality of work clearly isn't dependent on location.
I would want legal advice on this.
It's great that she has you on her side.

@RagamuffinCat

Could working from home permanently be considered a reasonable adjustment, given that she is currently doing this competently?

It certainly seems to fall into the realm of reasonable adjustment to me. If she needs her carer round the clock, how would you accommodate that in the workplace?

I think they might be opening themselves up to a DDA case if they insist.

@Brefugee

I hope it goes well, OP. It's lovely to see someone fighting for a member of their team like this. Of course, if you do ever decide to resign, and you have plenty of offers you could always take her with you. My company hires whole teams a lot, it really works well.

Great suggestion here!

@BitOutOfPractice

Good luck today OP. Not that you’ll need it because not only are you in the right, you also sound marvellously kick ass and I would love to have you in my corner!

Yes, you are a boss to treasure, OP.

@bevelino

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.

This was mentioned further upthread. I think the OP has changed a lot of details.

I don't think ur company will get away with that, even if she's worked for u less than 2 years it is still automatic unfair dismissal due to her disability.
Good for u for feeling so strongly about it. I hope she keeps her job x

Hope it goes well today.