How would you deal with an employee whose bad behaviour at work would normally justify disciplinary action, but whose actions might be explained by medication being taken for a health condition? How would you manage the workload of an employee with a job involving complex tasks who suffers from an illness that leads to a serious neurological disorder? And would you make any adjustments to a bonus scheme that excluded employees who had received a formal warning for sickness absence from receiving a bonus payment?
These are the issues that three employers faced in employment tribunal decisions decided under the relatively new provisions on “discrimination arising from disability” under the Equality Act 2010. See what the employers got right and where they went wrong by comparing the tribunal judgments and one Employment Appeal Tribunal decision: two successful claims and one that the employer was able to defend.
Discrimination arising from disability
Section 15 of the Equality Act 2010 makes it unlawful for an employer to treat an employee unfavourably because of something “arising in consequence of” his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability. There is no requirement for a comparator.
An employer can successfully defend a claim if it can justify the unfavourable treatment on the basis that it was a proportionate means of achieving a legitimate aim.
NHS trust dismisses paramedic suspected of stealing anaesthetic gas from ambulance station
McGraw v London Ambulance Service NHS Trust ET/3301865/11
An NHS trust had given support and counselling to a paramedic with a history of abusing Entonox. Entonox, which is used as an anaesthetic, is carried in ambulances for use by patients and kept in secure locations on the NHS trust’s sites.
While on sick leave for depression, the paramedic visited Richmond ambulance station at 2am. The ambulance operations manager knew that Mr McGraw was signed off sick and challenged him about what he was doing there. The manager later reported that the claimant appeared to be “heavily intoxicated” and was “visibly disoriented”. Several other members of staff present that night reported seeing the claimant carrying a canister of Entonox.
The NHS trust concluded at the end of a disciplinary process that the paramedic had gone to Richmond station on the night in question while signed off work sick with the intention of stealing Entonox. The trust rejected the claimant’s argument that he had gone to the station to collect his phone changer and laptop.
The paramedic was dismissed. He claimed disability discrimination in the employment tribunal.
College requires lecturer with neurological disorder who could not work full time to move to new type of contract
Williams v Ystrad Mynach College ET/1600019/11
A lecturer was diagnosed with hydrocephalus, which is a rare condition that leads to the build-up of fluid inside the skull. He had an operation to insert a shunt, which is a form of catheter that enables excess fluid to be reabsorbed elsewhere in the body. He later suffered complications and required hospital treatment.
Medical opinion on a possible return to work was inconsistent, but the lecturer recovered well and was told by his GP that he could “be considered fit for part-time work or possibly half his original workload”.
At a capability meeting, the lecturer pointed out the recent improvement in his health and made it clear that he was willing to work reduced hours (with his pay reduced accordingly), to give him more time to rest between periods of work.
The college principal suggested that the claimant should move from his permanent contract onto an “F4 contract”. This is a short-term contract for academic staff that the college can terminate at any time on two weeks’ notice. An academic on an F4 contract is given a set number of hours per week at an agreed hourly rate. The claimant said that he did not want to move to this type of contract.
The lecturer was later informed that he would be moved to the F4 contract. His appeal against this decision was rejected, on the basis that it was “odds-on” that he would become sick again.
The lecturer, who continued to work for the college under the F4 contract and whose health remained stable, claimed disability discrimination in the employment tribunal.
Land Registry operates a bonus scheme to reward good performance and attendance and links it to sickness absence record
Land Registry v Houghton and others EAT/0149/14
The Land Registry operated a discretionary bonus scheme that paid out £900 to each eligible employee. One of the rules of the scheme was that any employee who received a formal warning for sickness absence in the relevant financial year would not receive a bonus. Five employees were disabled and each had had a number of sickness absences related to their particular disabilities. This led to all five employees being given a formal warning and resulted in their being ineligible to receive a bonus.
The five employees claimed disability discrimination in the employment tribunal. The tribunal upheld the claims and found that it was “discrimination arising from disability”. The Land Registry appealed to the Employment Appeal Tribunal.