Whistleblowers: Brighton loses appeal in discrimination case

August 15, 2003

An employment appeal tribunal upheld a ruling that Brighton University discriminated against a disabled lecturer by making it impossible for her to return to work after sick leave.

The tribunal found that the Brighton employment tribunal was right in its unanimous conclusion last May that the university failed to make the necessary adjustments in accordance with the law to enable senior lecturer Thalia Tabary-Peterssen to return to work after suffering from chronic fatigue syndrome and persistent migraines.

The appeal tribunal upheld the conclusion that "the failure of good management, the failure of managers to accept responsibility and a willingness to presume that somebody else was responsible" led to the discrimination. In a ruling last month, the appeal tribunal described Brighton's appeal against the decision as "atomistic" and dismissed it on every count.

Ms Tabary-Peterssen joined the university in 1994 as a senior lecturer in the department of library and information studies. Before the onset of her disabilities, she fell out with head of school Peter Enser over timetabling and the allocation of work when he wanted to impose greater efficiency.

She went on sick leave in August 1999. The following March, a consultant neurologist reported that she had "quite severe and disabling migraine attacks", exacerbated by stress, as well as chronic fatigue syndrome "and some mixed anxiety and depression".

In June 2000, Ms Tabary-Peterssen said she would be able to return to work that summer, with an agreement over reduced teaching hours and minimal computer work. Deputy vice-chancellor David House laid down the university's formal plans to accommodate her. He said she could take up a reduced teaching load, half of that usually expected of senior lecturers.

There would also be a formal investigation into her concerns about her general working environment and relationships in the department.

Still wary of her ongoing timetabling problems with her head of department, Ms Tabary-Peterssen - quite reasonably in the view of the tribunal - questioned whether the new arrangements really would amount to a reduction in workload.

After a series of confused meetings with different representatives of the university - some of whom erroneously believed they were negotiating Ms Tabary-Peterssen's permanent departure from the university - the details she requested finally arrived in October. But by this time, Professor Enser had already made arrangements to cover her work, assuming she would not return in time for the autumn term.

Also by this time, the university had already accepted in an internal memorandum that her return-to-work timetable, as proposed by Professor Enser, was "rather out of date and misleading in several details".

Ms Tabary-Peterssen's later requests for information were met with a stern warning from the university that it would withdraw its offer of discussing "mutually acceptable" terms for a departure from the university within ten days and that she was now deemed to be still on sick leave, with the relevant pay cuts.

The original tribunal ruled that the misleading return-to-work timetable meant that the university had made its legal adjustments on a "false premise" and this "cannot be a reasonable step taken by the employer". It added: "The (university) made it impossible for (Ms Tabary-Peterssen) to return to work and determined, without medical evidence, that (she) should properly be classified as being on sick leave, thereby reducing her pay.

This was an act of discrimination."

The university was also found to have broken a key condition of the return-to-work deal by failing to investigate her complaints about workload and relationships as promised. "The evidence is that... the investigation just died ... there is a clear breach of the university's commitment in this regard."

In its appeal, the university argued that if she was not fit to return to work, then any problems with details over the timetable were irrelevant.

But the appeal tribunal said: "We are unable to accept this submission ... it demonstrates too atomistic an approach. We are satisfied that the tribunal reached the correct decision and that the appeal should be dismissed."

The university said it had no comment to make on the ruling.

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