Hidden disabilities in the workplace – a case study: Mr Kane v Barclays Bank

He had Crohn’s disease (an inflammatory bowel condition). He had numerous absences from work because of his disability. Barclays managed his absences and performance under its capability procedure.

Occupational Health’s advice included the following recommendations:

• Moving Mr K’s workstation to the floor which is closest to a toilet to alleviate his concerns around using the bathroom at “very short notice”.
• The business be flexible with absence triggers. The level of absences which could be tolerated was, ultimately, a business decision.

What was the outcome?

The Tribunal ruled that Mr K had not been given sufficient toilet access at work. Barclays had failed to comply with its duty to make reasonable adjustments. He recovered £8k in respect of his injury to feelings plus interest.

Mr K’s other claims of disability discrimination failed because:

• There was no evidence the performance improvement plan was imposed because of something arising in consequence of his disability.
• The attendance improvement plan was a proportionate means of achieving a legitimate aim. His employer had successfully argued what is known as the justification defence. This defence is available where an employer can show that any unfavourable treatment was a proportionate way of achieving a legitimate aim. Here, the Tribunal found that his attendance was managed in order to achieve the legitimate aim of ensuring adequate service levels and to mitigate the impact of absence on other staff members.
• It found that Barclays had applied its capability procedure proportionately – mainly, because it had not automatically sanctioned Mr K when hitting an absence trigger. Instead, it had taken Occupational Health advice so it could try and help him. This was a proportionate way of achieving the aim.
• Reasonable adjustments were made to the employer’s capability procedure, including the triggers for action. The Tribunal stated that it had been entitled to manage the sickness absence of its employees, including disabled ones.

What can we take away?

While points 1-2 did not result in any discrimination finding against Barclays, the Tribunal made some helpful observations. In summary:

1. Be prepared to explain the rationale behind any amended absence triggers. Record what level of absences can be tolerated and why. The Tribunal found the employer’s failure to do so unsatisfactory. Its HR department had simply told management what the allowances should be without explanation.
2. Use neutral language when drafting a capability procedure – the employer’s procedure stated that it should be used where there is a “problem” with an employee’s performance or attendance, and they would be treated as “failing” it if they did not achieve the set standards. The Tribunal found it reasonable that Mr K felt upset by being managed under a plan which was framed in such terms.
3. Monitor the working arrangements – Mr K moved branches; his employer should have assessed whether there was sufficient toilet access at the new location.

What did the employer get right?

• Engaging Occupational Health and consulting with Mr K who said he felt “extremely well supported by management”.
• Amending absence triggers under its capability policy so Mr K was able to have more absences before progressing to the next stage. The Tribunal held that Barclays had acted reasonably in doing so and generally given Mr K the support as advised by Occupational Health (aside from resolving the toilet situation).
• The data used in assessing his performance only measured the days when Mr K was at work and ignored the days when he was off work.