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Tribunal Report: Lighting case illuminates legal duties of employers

Third Sector, 19 September 2011

Victoria Willson

Victoria Willson

Ignoring staff disabilities can spell trouble for charities, says Victoria Willson

The employment tribunal's recent judgement in the case of Bove v Association of Voluntary Organisations in Wrexham (Avow) illustrates the extent of charities' duties towards disabled employees and the importance of handling grievances carefully.

The story

When Bove first worked in 2007 for Avow, a small charity, she said that she suffered from migraines, mainly triggered by fluorescent lighting.

Unhappy with the changes Avow proposed to make to its lighting, Bove raised a grievance and resigned.

In 2008, Bove was employed by Avow again when she transferred from another employer under the Transfer of Undertakings (Protection of Employment) regulations.

Before her move, Avow's chief officer, John Gallanders, wrote a note to Avow's advisers (later given to Bove in response to an access request) referring to their past problems and expressing reluctance to transfer her.

Bove raised three grievances: about confusion over whether Tupe applied, and lack of information and consultation; the failure to make adjustments to lighting; and about Gallanders.

Avow insisted that replacing the fluorescent tubes with those known as 'daylight' was enough, despite the fact that Bove insisted it was not, provided medical evidence and made suggestions about cheap and simple changes that could be made.

Bove resigned and brought claims of disability discrimination, failure to make reasonable adjustments by installing appropriate lighting, victimisation and constructive unfair dismissal.

The legal decision

The tribunal found that Bove was disabled and upheld all of her claims, awarding her more than £21,000.

The tribunal concluded that Gallanders had not wanted Bove to transfer because of her previous complaint (which mainly concerned alleged disability discrimination) and that he had several times acted towards her in bad faith, including seeking an enhanced Criminal Records Bureau check to try to "dig up dirt" and holding a grievance meeting in a room lit by daylight tubes as an "experiment".

The tribunal was highly critical of Avow, and of Gallanders in particular, concluding that he was looking for an opportunity to end Bove's employment, that the grievance processes were a sham and that the trustees had failed in their duty to oversee the conduct of the charity's officers.

It also commented that tribunals would not make smaller awards against smaller employers simply because they had "shallower pockets".

Lessons for charities

Any medical condition could constitute a disability and the duty to make reasonable adjustments for disabled employees is to prevent (not simply minimise) any disadvantage. When considering what is reasonable, the employee's own views and any medical evidence must be considered fully.

Wherever possible, complaints about a senior officer should be referred to trustees.

Finally, charities should take care when documenting views on employees, particularly in correspondence with non-lawyer advisers, because there are limits on excluding such documents from evidence.

Victoria Willson is a partner at Levenes Employment, third sector specialists.

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