Employer not justified in withdrawal of job offer to employee on grounds of mental health disability

The Employment Appeal Tribunal (EAT) recently found in favour of a disabled support worker whose offer of a permanent job was withdrawn because the employer believed that she did not meet the statutory requirement to be fit for work, despite her having worked there for three months. 

Employers should take care when dismissing or withdrawing job offers from disabled employees. Always consider any less discriminatory courses of action or risk a tribunal finding that the discriminatory treatment is unjustifiable.

The employer in Birtenshaw v Oldfield [2019] is a charity providing services to adults and children with special needs and disabilities. Ms Oldfield worked for Birtenshaw through an agency. Before starting with the charity, she filled in a medical questionnaire and declared that she had a mental health condition. During her time working for the charity, no issues were raised about her work and a manager recommended her for a permanent role.

She successfully applied for the permanent position. At interview, she discussed her mental health condition and that she had cancer. As is common practice, Birtenshaw offered her the job but subject to medical clearance.

An occupational health physician reported on Ms Oldfield’s health. The physician mentioned Ms Oldfield’s mental health condition and that she could “still be vulnerable to emotional symptoms” if under high levels of pressure. He also referred to a back condition and recommended ways to control the risks. The physician concluded that Ms Oldfield was fit to carry out the role and invited Birtenshaw to contact him if it needed further clarification.

Despite this, the charity withdrew the job offer. The manager reviewing Ms Oldfield’s recruitment, wrote on the report “does not meet legal criteria”, meaning the regulatory requirement for the staff to be physically and mentally fit for the job. Ms Oldfield was told that the offer was withdrawn and she was given one week’s notice to end her employment.

Ms Oldfield’s union contacted the charity, asking it to reconsider and suggesting she worked a probationary period to show that she was fit to do the job. The charity stuck to its position and found itself defending an employment tribunal claim from Ms Oldfield for disability discrimination.

The tribunal agreed with Ms Oldfield that withdrawing the offer was discrimination arising from a disability (her mental health condition). The tribunal was unimpressed by evidence from one of the charity’s witnesses that Ms Oldfield was a risk to service users “from day one”, even though it allowed her to work her notice period.

The charity did not convince the tribunal that its actions were justified. Although the tribunal accepted that it was legitimate for the charity to ensure it complied with its statutory duty to ensure that staff were fit for work, the tribunal found that simply withdrawing the job was disproportionate. Other options were available that might have a less drastic effect on Ms Oldfield, such as seeking further advice from occupational health or a probationary period. The charity’s appeal to the EAT was rejected.  

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.