Employee told to ‘get a grip’ wins claim of unfair constructive dismissal

In Oakley v EE Limited, a woman with post-traumatic stress disorder (PTSD) was told to ‘get a grip’ by her team leader. She subsequently resigned and brought claims of unfair constructive dismissal, disability discrimination and harassment related to her disability.

By way of background, Ms Oakley (the claimant), worked for EE Limited, a company which provides telecommunications and broadband services throughout the UK. Ms Oakley started working for the company in 2013 as technical customer adviser. Mr Gareth Roberts worked as a team leader for the company and was asked to temporarily act as team leader to a team, which included Ms Oakley.

On 16 September 2019, Ms Oakley and Mr Roberts met for a ‘coaching’ session. During the meeting, Ms Oakley informed Mr Roberts that she had issues going on in her personal life and was undergoing counselling. This was as a result of witnessing her father dying two years earlier and performing CPR on him. Mr Roberts accepted that Ms Oakley was disabled within the meaning of the Equality Act 2010 (EqA), on the basis that she suffered from anxiety and depression. However, he did not accept that she had PTSD.

Ms Oakley had been referred by her employer to RehabWorks, the company’s occupational health provider, and had been assessed by a clinician. In the treatment notes, the ‘working diagnosis’ was described as PTSD. The employment tribunal (ET) found, on the balance of probabilities, that the claimant was disabled within the meaning of the EqA as a result of anxiety and depression, as well as PTSD.

On 27 September 2019, Ms Oakley was supposed to attend a review meeting with Mr Roberts. However, a fellow employee, Ms Kirsty Hopkins, had to attend a stage one sickness meeting with Mr Roberts and asked Ms Oakley to attend for moral support. Mr Roberts said that Ms Oakley could either attend her review meeting or attend the meeting with Ms Hopkins. Ms Oakley chose to attend the sickness meeting. The meeting was due to last an hour, so Ms Oakley decided that she would buy her lunch from the canteen after the meeting had concluded.

However, the meeting took over two hours and by the time it had finished, the canteen was closed. Ms Oakley asked Mr Roberts if she could take her lunch break and she was allowed 30 minutes, as she would need to leave the office to buy food. In addition, Ms Hopkins was very distressed and so Ms Oakley spent about 10 minutes with her to make sure she was alright before going and buying her lunch.

When she returned, Ms Oakley planned on eating her food at her desk while going through her callbacks and emails. Mr Roberts approached her desk and told her she could not eat hot food at her desk, so she went to a breakout room. Mr Roberts told the ET that he noticed Ms Oakley was late back from lunch. About five minutes after she had gone to the room, he went in to tell her that she was late back from lunch and she needed to get back online. Ms Oakley apologised for being late and began to collect up her belongings. She said that Mr Roberts stood over her and challenged her with regard to being late and raised again the fact that she intended eating hot food at her desk. She said that Mr Roberts became aggressive towards her and stated that they were very busy and that Ms Oakley was not doing her job. Ms Oakley told the ET that she then became upset and felt as if she was going to cry. At this point, Mr Roberts told her to ‘get a grip’ and that, as she was clearing the table, said ‘come on then you’re late’ and ‘you need to hurry up’.

Shortly after returning to her desk, she took a call from a customer. While she was dealing with the call, Mr Roberts came over to her desk to offer to bring her break forward. Ms Oakley declined the offer and Mr Roberts again brought up the issue of lateness and food being eaten at the desk. Ms Oakley asked Mr Roberts to leave her alone and he returned to his desk. Ms Oakley stated that she then started to shake and had difficulty breathing. She said that she was having a panic attack. One of her colleagues came to help and took over her call. Ms Oakley went to one of the rooms to calm down and a manager came in to see if she needed anything. He also asked if she wanted to see Mr Roberts and Ms Oakley told him that it was Mr Roberts who had caused the panic attack. However, Mr Roberts did come and see Ms Oakley and again raised the issues of her being late and eating at her desk. He also said that he expected her to be back online in five minutes. However, Ms Oakley said that she was unable to return to work and her partner came to collect her to take her home.

On 30 September 2019, Ms Oakley sent a letter of resignation to the operations manager, Mr Shuck, stating ‘I was humiliated in front of everyone, being harassed and bullied into experiencing the worst panic attack of my life…’. Mr Shuck replied to Ms Oakley asking to speak with her to discuss the points raised. He wrote again two days later, suggesting that she may have acted hastily in deciding to resign. Ms Oakley e-mailed Mr Shuck retracting her resignation letter and raising a grievance.

The grievance was partially upheld and Ms Oakley appealed. Following an approach from a company via LinkedIn, Ms Oakley started employment with them on 2 December. On 23 December 2019, she lodged a claim form at the ET, claiming she had been unfairly constructively dismissed and also discriminated against and harassed on the grounds of disability. On 9 January 2020, her grievance appeal hearing took place: the decision of the original grievance was upheld and the appeal was dismissed.

When looking at the question of whether Ms Oakley had been unfairly constructively dismissed, the ET asked itself the following questions:

• Did the employer breach a fundamental term of the contract?
• Did Ms Oakley resign in response to the breach?
• Did Ms Oakley delay too long before resigning, thereby reaffirming the contract?

The ET found that Mr Roberts’ conduct towards Ms Oakley amounted to a repudiatory breach by the employer of her contract of employment: his conduct had caused her to become extremely distressed. However, because Ms Oakley retracted her resignation, the ET found that there had been a breach, but that Ms Oakley had chosen to give the employer the opportunity to remedy it by her raising a grievance. The ET’s judgement, though, was that even though Ms Oakley withdrew her first resignation, her conduct in simultaneously lodging a grievance, her decision not to attend the office until its outcome and her indication that she wished to give the employer an opportunity to rectify the situation, meant that she had not affirmed her contract of employment.

Therefore, the ET found that Ms Oakley’s claim for unfair constructive dismissal succeeds.

The ET also found that Ms Oakley was discriminated against based on her disability and that she succeeds in her claim of harassment relating to her disability.

Summary

This case highlights the needs for employers to ensure that they treat employees with understanding following the disclosure of mental health issues, such as anxiety and PTSD. Speaking to employees in a derogatory manner could lead to a finding of unfair constructive dismissal, as well as disability discrimination and harassment.