An Edinburgh-based organic food firm has been ordered to pay a former employee almost £30,000 for flouting disability discrimination laws.
An employment tribunal found that Real Foods Ltd had failed to recognise that fibromyalgia, an incurable condition that causes severe, chronic pain, is a recognised disability and firms must take steps to support workers.
The employee's job involved repackaging goods, generally from 25kg sacks, into smaller packaging to be sold on the shop floor.
She was described as a "fast, neat and efficient packer" who occasionally needed to finish early due to her health.
She was diagnosed with fibromyalgia in July 2020 after years of unexplained pain and fatigue.
Four months later the woman, named as Mrs B Jenkins in the report, was awarded a pay rise for performance and length of service at the firm which operates two Edinburgh stores and a wholesale business.
She joined the firm in 2015 but took some time out to go travelling at the end of 2018 and returned the following year.
She disclosed her diagnosis to the firm in December 2020 in a detailed email and asked if they would consider some flexibility in her hours, shift patterns and duties.
She was in a lot of pain and experiencing significant fatigue, particularly when carrying heavy sacks from the warehouse.
Other than checking whether there were any current vacancies in the finance department, the tribunal found that the firm took no steps to investigate whether her duties could be adjusted, or whether she could switch to any other department on a trial, temporary or permanent basis.
On March 12, 2021, she was signed off by her doctor for several weeks of sick leave after a significant flare-up of her illness.
The company's response was to sack her over the phone saying her standards of work were "unacceptable". No procedures were followed because the firm said she had under two year's service.
The firm did not discuss the claimant’s medical condition, or the potential of her being a disabled person under the Equality Act 2010.
A lawyer acting on her behalf said the company should have known that fibromyalgia was a disability and it was their duty to make reasonable adjustments to allow her to continue working.
The company also failed in its contractual obligations to meet with her before making any decisions, allowing her to be accompanied at that meeting and providing her with the right of appeal.
Scottish broadcaster Kirsty Young was forced to leave her Desert Island Discs radio presenting slot after being diagnosed with secondary fibromyalgia in 2018.
The 53-year-old told how she was left unable to do simple chores and struggled with low moods.
The Department for Work and Pensions currently recognises fibromyalgia as a potentially disabling condition. Under the definition of the Equality Act 2010, several court cases have also recognised that it meets the definition of a 'disability'.
The tribunal was told that the woman's physical health declined after she was dismissed and she experienced a "significant and debilitating" increase in her fibromyalgia symptoms and has been unable to find another job.
The lawyer for Real Foods said the onus was on the employee to prove fibromyalgia is a disability.
Employment judge Melanie Sangster said the claimant's dismissal "amounted to discrimination arising from disability" and she was awarded £27,956.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules here