REWARD INSIGHT
Disability, discrimination, comparators
NicolaMullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Asda Stores Ltd v Mr D Raymond In this case, the Employment Appeal Tribunal (EAT) was tasked with determining whether a disabled lorry driver had been subjected to unreasonable disciplinary action and discrimination after urinating in his employer’s delivery yard. The driver, Mr Raymond, suffered from type 2 diabetes which includes amongst its symptoms the sudden need to urinate. When returning to his employer’s premises the employee felt such a sudden need and, fearing that he would be unable to reach the toilet facilities in time, urinated in the delivery yard. The employee’s actions were captured on CCTV and a disciplinary investigation took place, during which the employee admitted to the act and expressed his apologies. Following this, and the realisation that Raymond had urinated near a loading bay which could have potentially contaminated food pallets, Asda proceeded to dismiss him for gross misconduct citing wilful neglect of company property, breach of health and safety regulations and the potential for reputational damage. Raymond exercised his right to appeal the dismissal with his employer and
produced evidence that his medical condition was the reason for his actions. However, Asda refused to investigate this further and dismissed the appeal. In response, the employee brought claims to Employment Tribunal (ET) for unfair dismissal and discrimination arising from a disability. Upon reviewing the evidence, the ET upheld Raymond’s claims. The tribunal determined that the employer erred in failing to specify which health and safety regulations were breached, as well as failing to conduct a reasonable investigation into the incident. Importantly, it was determined that the CCTV footage used did not clearly show that Raymond had urinated on food pallets, as Asda had supposedly claimed. The ET went on to add that a reasonable employer would have made appropriate enquiries into the employee’s medical condition and considered that his disability may have caused the sudden need to urinate. As Asda failed to take these steps it was held that Raymond had been subject to discrimination arising in consequence of a disability. Asda appealed but the EAT agreed with the findings of the original ET and
dismissed this. The EAT held that the whole process had been tainted by the employer’s unreasonable response to the issue and that the CCTV footage used did not provide sufficient evidence for a gross misconduct dismissal. The employer’s failure to investigate Raymond’s medical condition, or consider how this could impact his actions, proved a decisive factor; it was unreasonable to claim that mutual trust and confidence had been breached in a situation where the employee’s disability was an operative cause of dismissal. From an employer’s perspective this case offers a useful reminder of the important of completing a full and reasonable disciplinary investigation before deciding to dismiss an employee, including taking note of any new evidence brought up during an appeal. Extra care should be taken when an employee has a pre-existing medical condition that could qualify as a disability, as dismissing someone for misconduct that occurs as a direct result of their disability is likely to amount to disability discrimination. Jolly v Royal Berkshire NHS Foundation Trust Although only a first-instance decision, the ET’s ruling in this case resulted in the 88-year old claimant becoming the oldest person in the UK to succeed in bringing an age discrimination case against her
...a reasonable employer would have made appropriate enquiries into the employee’s medical condition... ...
| Professional in Payroll, Pensions and Reward | May 2019 | Issue 50 38
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