Public and Commercial Services Union

DDA - stress related cases. Provision of psychiatric reports/ investigation of complaints/constructive dismissal. Case Ref:9.1/ Oct 05

Summary of Case

Our member Mr W had been off work on a number of occasions which he put down to work related stress. He had several meetings (discussions with Personnel regarding issues relating to his health). Welfare were also involved with his case. He formally requested re-grading from EO to AO and this was agreed.

He raised a formal grievance in January 2004 raising concerns about the way in which the employer had dealt with his concerns prior to agreeing downgrading. He raised a further grievance some 6 months later specifically seeking regrading back to EO.

This was triggered by fresh medical evidence which suggested he may be disabled under the DDA. Both grievances were finally rejected in October 2004. Mr W resigned from employment in November 2004 claiming disability discrimination and constructive dismissal

Advice Requested

The solicitor was asked for a view on the chances of being successful at a Tribunal on the following grounds:

1. Suffering a detriment because of a disability.
2. Failure to make reasonable adjustments.
3. Constructive dismissal

Key Advice Provided by Thompsons

Key extracts from the solicitors' advice letters were:

Disability Discrimination

"Your member would first have to demonstrate to an Employment Tribunal that he was disabled within the meaning of the DDA. Your member would no doubt rely upon the report from a doctor dated 5 April 2000 concluding that "Mr W will probably fall now within the remit of the DDA 1995". The other side's more up to date report from a doctor dated 26 January 2004 does not address whether she feels your member is disabled within the meaning of the DDA.

It is clear from the medical evidence, that your member has suffered from various types of depression since 1998 including acute stress, stress related illness, anxiety symptoms and work related stress. However, this medical evidence alone is unlikely to satisfy an Employment Tribunal that he is disabled.

Your member would have to demonstrate that he had a mental impairment which had a substantial long term adverse effect on his ability to carry out normal day to day activities. Your member's mental impairment would also have to be a clinically well recognised illness. I am afraid that none of the conditions referred to in the medical reports amount to a clinically well recognised mental illness. Your member would require a supporting report from a Consultant Psychiatrist confirming that he had a clinically well recognised mental illness. As you are aware, if the claim proceeds the normal procedure is that a joint expert is instructed on this preliminary issue.

From the medical evidence available at present, your member is unlikely to be able to demonstrate that he is disabled within the meaning of the DDA. However, I will now go on to assess the merits of any DDA claim in the event that your member obtained supporting evidence from a Consultant Psychiatrist.

Your member appears to have only two possible DDA claims. Firstly, a claim of less favourable treatment and/or failure to make reasonable adjustments on the grounds that the Respondent refused to re-grade him back to an EO. Secondly, a possible claim of less favourable treatment in respect of how long his grievance took to be resolved.

I am afraid that I do not believe that either of these potential claims has any reasonable prospect of success. The Employment Tribunal is likely to take the view that your member voluntarily requested a re-grading to AO despite attempts by the Respondent and their Welfare Officer to advise him otherwise. Moreover, your member actually provided the Respondent with a letter from his GP in support of his re-grading application which concluded "Ideally he tells me he would like to re-grade to a less stressful post."

In these circumstances, I think it is highly unlikely that an Employment Tribunal would conclude that the Respondent's failure to re-grade him back to a higher grade of EO amounted to less favourable treatment and/or a failure to make reasonable adjustments.

I appreciate that your member is disappointed at the length of time the Respondent took to deal with his grievance. However, your member raised many issues and supporting documentation with the Respondent which triggered an investigation involving at least three other staff members. I have advised on many other potential legal claims involving the Civil Service.

They have frequently taken more than 104 days to resolve much more straightforward issues. Therefore, I do not feel your member is likely to be able to persuade an Employment Tribunal that the Respondent's delay in dealing with his grievance was less favourable treatment due to his disability."

Constructive dismissal

The solicitor said:

"Your member would have to establish that there had been a fundamental breach of contract which resulted in his resignation on 1 November 2004. Your member would no doubt rely upon the Respondent's failure to deal with his grievance in a timely fashion to support any claim.

I am afraid that I feel that such a claim would be speculative and have less than reasonable prospects of success. Moreover, the Respondent would no doubt claim that one of the factors in your member's resignation was that he was taking up other employment on 8 November 2004.

I note from the documentation that your member states his new employment was a lesser paid post than EO. However, if this new employment is at least as good as an AO, then even in the unlikely event that his claim for unfair constructive dismissal was successful he would not receive any compensatory award."

Legal Department Comment

Three points stand out in relation to the above advice:

Firstly, in this type of case it is clear that in order to proceed with the claim, the member would need to obtain a supporting report from a Consultant Psychiatrist which confirms that the applicant is suffering from a well recognised mental illness.

Depending on the circumstances (including advice from solicitors if available) the PCS Legal Department may be able to assist with funding for any report. Representatives are urged to consult the Legal Department before entering into any commitment to meet the costs of a medical report.

Secondly, the solicitor provides some guidance on how ET's may view complaints, which are echoed by many representatives and members, about the length of time it can take Civil Service Departments and Agencies to deal with grievances.

Complexity and the numbers of staff cited in any grievance may be factors which lead an ET to conclude that this has not amounted to unfavourable treatment.

Thirdly, in line with advice given in previous bulletins, there are difficulties in persuading ETs to agree a finding of constructive dismissal. Members are firmly recommended to consult with PCS before making any decision to resign employment.