Treating Every Employee in the Same Way May Itself Be Discriminatory

Anti-discrimination laws are often viewed as requiring employers to treat all their staff in the same way. However, as an Employment Tribunal (ET) ruling made plain, the positive duty to make reasonable adjustments to cater for disabled workers’ needs may require them to be treated more…

Sep 22, 2023

The case concerned a quality controller in a food packing plant who was disabled by back pain and depression. He worked 12-hour night shifts in the refrigerated plant and was on his feet for much of the time. After he had been absent on sick leave for nine months, his employer took the view that he would not be able to return to work and dismissed him on capability grounds.

After he launched proceedings, the employer asserted, amongst other things, that it had a clear and consistent policy in place and treated all its employees on long-term sickness absence in the same manner. Dismissing him, it contended, was a proportionate means of achieving a legitimate aim.

In upholding his disability discrimination claim, however, the ET noted that the duty to make reasonable adjustments, enshrined in Section 21 of the Equality Act 2010, is unique in that it requires employers to take positive action to avoid substantial disadvantage caused to disabled employees by aspects of their workplace.

That can in turn require employers to treat their disabled employees more favourably than others. Having a policy where all employees are treated the same is thus itself discriminatory as it does not allow an employer to treat individuals according to their personal circumstances, including any disability they may have.

Various reasonable adjustments could have been made that might have enabled his return to work. Amongst other things, he could have been deployed part time, given regular breaks, relieved of heavy lifting duties or provided with a seat or perching stool. The failure to obtain an occupational health or medical report prior to his dismissal also amounted to a failure to make a reasonable adjustment.

The ET accepted that lack of capability was a potentially fair reason for the man’s dismissal and that the employer genuinely believed that there was no prospect of him being able to return to work. However, in also upholding his unfair dismissal claim, the ET found that that belief was not reasonably held. If not agreed, the amount of his compensation would be assessed at a further hearing.

Dismissal for Misconduct Without a Reasonable Investigation is Rarely Fair

Dismissing an employee for misconduct is very unlikely to be viewed as fair if there has been no proper investigation and no consideration of either mitigation or the possibility of a lesser sanction. An Employment Tribunal (ET) made that point in the case of a veteran music teacher who was sacked for refusing to attend a staff meeting. The teacher, who had worked at the relevant school for 24 years, was told by her boss that attendance at the meeting was not optional. When she informed him…

Furlough Whistleblower Succeeds in Automatic Unfair Dismissal Claim

Employees are entitled to insist that their employers abide by their legal obligations and should never be penalised for doing so. The point was made by the case of a woman who pointed out that a meeting with her boss had extended beyond her agreed working hours under the COVID-19 furlough scheme. The sales manager was on part-time flexible furlough during the pandemic and, on most days, her agreed working hours were between 10am and 4pm. During a performance review meeting with her boss, she…

Care Home Operator Heavily Fined Following Resident’s Tragic Fire Death

Care home operators who fail in their duty to keep residents safe can expect severe punishment. That was certainly so in the case of a wheelchair-dependent man who was engulfed by flames whilst smoking outside the care home where he lived. The man, who had suffered a stroke, had been resident in the home for almost a decade. He was a known smoker and had been left alone in a sheltered outdoor area to enjoy a cigarette. He caught fire and, despite desperate efforts to extinguish the blaze, it…