An ex-Boots employee with a severe hearing impairment has won his case at an employment tribunal after the company failed to make reasonable workplace adjustments for him for more than a year.
However, his claim for direct disability discrimination, after his nomination for a promotion was allegedly “blocked” by the company, did not succeed because he did not make his claim within the required time frame.
Workplace adjustments
Mr Askander was employed as a customer assistant at Boots in Tottenham Court Road from 2007 to April 2019.
He was diagnosed with “moderate to profound sensorineural hearing loss” in both ears, which deteriorated markedly following an assault in 2014. Boots was aware of this and knew he qualified as disabled under the Equality Act 2010.
When filling out a performance review in April 2018, Askander said he wanted to become an assistant manager. He had been employed at Boots for 11 years and felt he was qualified as he occasionally managed the store operations in the absence of the store manager or assistant manager, including opening the shop.
However the following month he learned that a colleague, Mr Hussain, had been selected for training which would enable him to work as an assistant manager. Askander told the tribunal this came as a surprise to him as he felt he had more qualifications and more experience working at Boots than Hussain.
He felt further aggrieved when Hussain told him his disability would have a considerable impact on Boots’ decision to promote him. He was alleged to have said Aksander’s disability would be a barrier to his career growth as he could not do some of the tasks required, such as communicating over the telephone or in person.
He lodged a grievance against the decision, claiming he had been discriminated against on the grounds of his disability in being denied promotion. He reflected on a conversation he had in 2015 with his then line manager, Mr Macauley, in which Macauley had nominated him for the assistant manager training programme. He claimed that the nomination had been “blocked” by Boots.
Addressing his grievance, Boots said there were several areas where he was not performing well which is why he had not been considered for the assistant manager training scheme.
It also noted that Askander’s complaint had relied on the fact that he had several qualifications and tenure that Hussain did not have, but Boots said promotions were decided on skills, competencies and behaviours – not tenure or degrees. It asserted that the decision not to put him forward was not based on his disability.
He also raised a grievance about the lack of adjustments that had been put in place following a workplace assessment in December 2016. Certain hearing aids, a telephone and other equipment that would assist Mr Askander in his role had been recommended.
He spoke to the company’s director of customer experience in September 2017 about the lack of equipment for him and in March 2018, when the equipment still had not been provided, he wrote to store manager Mr Patel.
Patel told him someone in Boots’ HR team said a new workplace assessment needed to be done. An assessment was arranged for April 2018 but was never carried out as Askander went off sick with a back issue that month and did not return to the company.
Boots said that as Aksander indicated he was looking for other roles outside of the organisation in August 2017, it had put the decision about the adjustments on “temporary hold” as it was unclear whether he would remain with the company.
The employment tribunal found that Boots had provided no suitable explanation about why his nomination for the assistant manager programme was “blocked”. Because of this, it agreed that Aksander had been discriminated against because of his disability but because his claim was made outside of the time limit no award could be made.
It also agreed that Boots failed to make the necessary workplace adjustments, with judge Paul Stewart stating in his judgment: “The delay between December 2016 and September 2017 was unexplained other than, in August, the claimant had announced to Mr Patel that he was looking for a job outside of the respondent’s organisation. It was a reasonable response for Mr Patel to indicate that, given the claimant might be leaving, the respondent was going to save its money. However, that does not explain the previous eight months’ delay.
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“The respondent’s own hearing department had supplied a quotation on 10 January 2017 and two other providers of hearing aids and equipment had supplied quotations around the same time. The respondent had the advantage of having had expert identification of what was needed for the claimant and failed to action it. We therefore consider they failed to make reasonable adjustment.”
