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.

Disability Discrimination and Hypothetical Comparators – Guideline Ruling

Workplace disability discrimination claims often hinge on arguments that a disabled person was treated less favourably than a hypothetical comparator. As a guideline Employment Appeal Tribunal (EAT) decision showed, the circumstances that are imputed to such a comparator are, in many cases, of decisive importance. The case concerned a warehouse operative who was disabled by degenerative disc disease in her lower back. She was in near-constant pain and could not bend, walk or sit for more than…

Representing Yourself in Employment Proceedings is a Recipe for Muddle

Those who choose to represent themselves in employment proceedings, without the benefit of legal advice, often have enormous difficulty in getting their real complaints across. That was certainly so in the case of a woman who claimed to have been so badly treated by her employer that she was forced to resign. The woman had been in her job for less than three months when she resigned. The fees her employer had paid to a recruitment agency when she was taken on – which came to £945 – were…

‘Secular Atheism’ a Philosophical Belief Worthy of Human Rights Protection

It is a fundamental feature of any democratic society that anyone can freely express their philosophical beliefs, even if others may find them offensive. An Employment Tribunal (ET) powerfully made that point in the case of a train conductor who was sacked after venting his secular atheist views on social media. In welcoming the reopening of pubs at the end of a COVID-19 lockdown, the man wrote an online post urging people not to let their way of life ‘become some sort of Muslim alcohol-free…