£184,00 award following failure to make reasonable adjustments
In Leigh v Lancashire County Council the claimant was a care worker and assistant manager at a children's home. She was a disabled person by virtue of arthritis and spondylitis of the spine. Part of her role was to sleep over at the home, however she was exempted from having to restrain the children due to her condition. Her line manager then began raising concerns about the claimant's decreasing mobility, leading to a more senior manager becoming aware of the exemption. The claimant was then informed that if she could not physically restrain children she could no longer work at the home. Numerous meetings and some months later the claimant was retired on ill health. This was despite her having explained that stopping work would be life changing and devastating to her. A number of occupational health reports obtained prior to the dismissal stated the claimant could have continued with the reasonable adjustment of the exemption from restraining the children.
The claimant made successful claims to an employment tribunal based on the employer's failure to make reasonable adjustments - specifically the failure to allow the exemption from carrying out physical restraint and a failure to not require the claimant to do sleep-ins on a regular basis. Her claim of discrimination arising from disability was also successful. The tribunal concluded that it was unfavourable treatment to embark on a process which could potentially lead to the claimant’s dismissal by initiating the respondent’s attendance/capability policy. This arose in consequence of the claimant’s disability. Although the tribunal accepted that the policy was initiated in order to achieve the legitimate aim of efficient running of the business and/or the health and safety of staff and those in its care, the failure to make reasonable adjustments described above meant that the implementing the policy was not a proportionate way of achieving those aims.
In a subsequent remedies hearing the claimant was awarded more than £184,000 in compensation.
Dismissal tainted by discrimination on grounds of religion was unfair
In Akbar v DHL Services Limited the claimant was a Warehouse Coordinator who had been employed for nearly 24 years at the time of his dismissal.
The claimant was dismissed primarily for having made homophobic comments unrelated to religion, but also in part for having stated that you "can't be Muslim and gay". An employment tribunal concluded that both the dismissal and a decision to reject an appeal against the dismissal amounted to direct discrimination on the grounds of religion and belief. The statement was a manifestation of the claimant's Muslim belief, but not an objectionable one. During the appeal hearing the claimant was repeatedly asked "do you not think saying you can't be gay and a Muslim is homophobic". The minutes showed the claimant answered in the negative but the question was repeated in any case, and that the claimant was offended by the question. The tribunal concluded this amounted to harassment related to religion or belief. A claim of unfair dismissal was also successful - the reason for the dismissal was tainted with discrimination and the tribunal was therefore not satisfied that reason was reasonable in all the circumstances.
The tribunal went on to consider contributory fault. It found that the homophobic comments that were made (but were not related to religion or belief) could have led to a fair dismissal even if the you "can't be gay and Muslim" comment had not been made. However, dismissal would not have been inevitable. In the circumstances the tribunal considered a reduction to compensatory and basic awards of 80% would be just and equitable. Taking that into account, the level of compensation to be awarded is to be decided at a future remedy hearing.
Failure to promote was not sex discrimination, despite discriminatory assumptions about caring responsibilities
In the case of Lawrence-v-Barclays Execution Services Limited the female claimant was successful in a claim that a line manager's comment at a meeting that she was "happy to remain at VP" was discrimination on the grounds of sex. The comment was based on the line manager's assumption that because the claimant had indicated she was temporarily having to prioritise family pressures, that meant she had lost her desire for promotion. The tribunal concluded that had the claimant been an equally high performing man with the same temporary pressures, that assumption would not have been made. However, the claimant was unsuccessful in her claim that the failure to award her a promotion was direct discrimination because of sex, race or religion. The employment tribunal did however query the respondent's promotion practices. Acknowledging the respondent showed some good practice, the employment tribunal suggested the respondent consider:-
- That the use of subjective assessment risks the application of unconscious bias;
- Relying on only one line manager to recommend in-role promotion risks narrowing the entry point to one subjective view;
- The senior leadership meeting where in-role promotions are discussed being minuted, with reasons for approval or rejection against the criteria being recorded;
- Keeping statistics on in-role promotions;
- Sharing competencies for promoted positions with those that are eligible to apply for them; and
In addition the tribunal judgment said that where discrimination grievances are raised the respondent should "grapple with them head on……it is the sign of a mature, inclusive institution to allow itself to be challenged".
