CitationDownload as .RIS
Emerald Group Publishing Limited
Copyright © 2012, Emerald Group Publishing Limited
Case report – disability discrimination
Article Type: Employment law outlook From: Human Resource Management International Digest, Volume 20, Issue 2
An employment tribunal finds that the AA unlawfully discriminated against a type 1 diabetic
S.13 Equality Act 2010 provides that a person (A) directly discriminates against another (B) if, because of a protected characteristic, A treats B less favorably than A treats or would treat others.
S.15 provides that A discriminates against B if A treats B unfavorably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Under s.20, employers are under a duty to make reasonable adjustments where a provision, criterion or practice applied by or on behalf of an employer … puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled.
S.26 provides that A harasses B if A engages in unwanted conduct related to disability and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Paul Bailey started working for the AA as a patrolman in 1998. He was ranked as a top 100 performer. In 2009, he was diagnosed with type 1 diabetes. He moved to working day shifts and the requirement to carry out physically strenuous vehicle recoveries was removed. Occupational Health also suggested that whereas Mr Bailey was previously a top performer, he now needed to take a more measured approach to his work. His performance subsequently dropped.
In October 2010, the AA sent out a training patrol with Mr Bailey for two weeks. Neither Mr Bailey ,nor the training patrol were told the purpose of the accompaniment and Mr Bailey found it stressful as the training patrol believed that he was there to increase his speed. Furthermore, Jason Morrison, Mr Bailey’s line manager, telephoned the training patrol and spoke with him about Mr Bailey while Mr Bailey was present. Jason Morrison further told Mr Bailey that another manager had type 1 diabetes and that Mr Bailey should not therefore have a problem. Mr Bailey received no feedback following the accompaniment. However, following this, the requirement for him to carry out vehicle recoveries was re-instated without explanation.
In December 2010, Jason Morrison offered Mr Bailey three months’ salary to leave failing which he would be placed on an improvement plan which, he was told, he would not pass. Mr Bailey was also offered alternative positions. Jason Morrison also told Mr Bailey that other patrols were paid the same money for doing twice as much work and that if Mr Bailey had an accident that Jason Morrison could be sent to prison for corporate manslaughter.
In January 2011 Mr Bailey was subjected to a technical assessment. The forms relating to the technical assessment indicated that a person who did not do well could be dismissed. Mr Bailey complained that although his performance had dropped as a result of his diabetes, there was nothing wrong with his technical ability.
In the employment tribunal, Mr Bailey successfully pursued claims of direct discrimination, discrimination arising from disability, harassment and a failure to make reasonable adjustments.
The tribunal found that it had never happened that an employee had been accompanied by a training patrol for two weeks; the accompaniments usually lasted a day, that the reason for it was Mr Bailey’s reduced performance owing to his diabetes, that his performance was not so bad as to merit a performance review, that neither Mr Bailey nor the training patrol had been told the purpose of the accompaniment and that the decision for Mr Bailey to be accompanied was because he was disabled. The tribunal further held that whereas the requirement for Mr Bailey to carry out vehicle recoveries was removed as a reasonable adjustment, it was deliberately re-instated following the training patrol. The tribunal also found that being offered three months’ pay to leave, being told that if he did not accept the money he would be put under an improvement plan which he would not pass, and that being offered alternative roles with less security also constituted direct disability discrimination. The tribunal further held that being subjected to a technical assessment constituted direct disability discrimination as the purpose of the assessment was to see if Mr Bailey could have been disciplined because of his impaired performance.
Discrimination arising from disability and harassment
The tribunal also found that sending out the training patrol with Mr Bailey, discussing his performance with the training patrol while Mr Bailey was present, seeking to terminate his employment, requiring him to undergo a technical assessment, telling him that other employees were paid the same for doing twice the amount of work and that if he had an accident at work his line manager could be sent to jail for corporate manslaughter constituted acts of “discrimination arising from disability.” In particular, the tribunal found that the AA had not shown any legitimate reason for acting as it did. These same factors also constituted unwanted acts related to disability that caused Mr Bailey to feel threatened, stressed, embarrassed or distressed, which created an intimidating and hostile environment for Mr Bailey and that it was reasonable to consider that such behavior would have that effect. The tribunal accordingly upheld Mr Bailey’s complaint of harassment.
Failure to make reasonable adjustments
Finally, the tribunal found that re-instating the requirement to carry out vehicle recoveries was a provision that placed Mr Bailey at a substantial disadvantage as it was acknowledged that it had been initially removed to relieve the impact of stressful situations. Accordingly, it would have been a reasonable adjustment to maintain its removal. The tribunal also found that the AA itself admitted that it would have been a reasonable adjustment to reduce Mr Bailey’s targets to reflect the impact of disability.
This was one of the first successful claims to rely on the new “discrimination arising from disability” provisions under the Equality Act. The case details a catalogue of errors in managing an employee newly diagnosed with diabetes and employers should seek legal advice when dealing with such situations.
Asha WijeEmployment Law Solicitor at Simpson Millar LLP, Wimbledon, UK.
© Copyright 2011 Simpson Millar LLP Solicitors
To find out more about how Simpson Millar LLP’s employment law team could help you visit: www.simpsonmillar.co.uk or call 0844 858 3800 to speak to Asha Wije or 0844 858 3499 to speak to Joy Drummond.
This newsletter is intended for information purposes only and its content should not be applied to any particular set of facts or relied on without legal or other professional advice.