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 favourably than their colleagues.

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.