REWARD
answer this question, nor did he inform the respondent that he couldn’t create a username and password to create the account. The claimant brought a claim for failure to make reasonable adjustments because of the respondent’s refusal to allow them to submit their job application orally. The respondent argued that the duty to make reasonable adjustments hadn’t arisen because the claimant hadn’t explained, despite being asked by email on several occasions, what the specific difficulties were with completing the online application. The employment tribunal (ET) found that the respondent knew that, because of his dyspraxia, he had difficulty in filling in online application forms and that ought to have been enough for the respondent to take more action than it did. The ET, therefore, upheld the claim of failure to make reasonable adjustments. This decision was appealed to the EAT who found that the ET were entitled to conclude that an employer acting reasonably would have telephoned the claimant to understand more about the situation, and that the emails they sent weren’t enough. The fact the respondent didn’t know exactly what the difficulty was with completing the online form didn’t mean that the duty to make reasonable adjustments didn’t arise, as there was sufficient information available for the respondent to realise that this was a disability-related issue. The appeal was therefore rejected. Ramos v Lady Coco Ltd t/a Shamela’s Fresh Hot and Cold Food The ET had to decide whether a job applicant was discriminated against, on the grounds of sex, by an advert requesting “takeaway female staff”. The claimant, who lived in London, saw an online job advert which stated they were looking for female staff to work for them in their Chinese restaurant in Glasgow. The claimant didn’t apply for the job or attempt to contact the restaurant. Neither did he investigate moving to Glasgow or apply for other jobs within Scotland that might have indicated a desire to relocate. Instead, he bought a claim for sex discrimination. In examining this case, the ET looked closely at the motivations of the claimant, to ascertain whether he had a genuine
desire to move to Scotland and take on this job. The ET found that the claimant could have contacted the restaurant to enquire about the role and given that the advert also referred to “he / she”, it suggested that perhaps the employer wouldn’t only have considered female applicants. “A preparation time order was subsequently made, which ordered the claimant to pay the respondent £697 because he acted vexatiously and unreasonably in bringing a claim which had no reasonable prospects of success” There was no evidence that the claimant wanted to upheave his life and relocate. Under questioning, the claimant said that the advert had referred to a “beautiful park” and for that reason alone he wanted to take on the role and move hundreds of miles. This was rejected by the ET, who were unconvinced by his arguments. To claim unlawful discrimination, there must be less favourable treatment; however, in this case the ET found that, as the claimant had no genuine intention of applying for the role, there was no less favourable treatment. His claim was therefore dismissed. A preparation time order was subsequently made, which ordered the claimant to pay the respondent £697 because he acted vexatiously and unreasonably in bringing a claim which had no reasonable prospects of success. Ali v Pennine Care NHS Foundation Trust In this case, the ET had to consider whether a refusal to allow the claimant, who had just been offered the job to work from a private office when taking
telephone calls because of a speech impediment, was a failure to make reasonable adjustments. The claimant disclosed on their job application form and during his interview that he had a stammer, which was worse when under stress and when speaking in front of people he doesn’t know well. After the claimant was offered the position, he emailed the respondent to say that in his current role he was allowed to avoid making telephone calls in front of his colleagues and asked whether this would be possible in his new job. Discussions took place with HR about whether the claimant could be given a mobile telephone and use a manager’s office when making telephone calls. There were also conversations about whether the department layout could be redesigned. HR were also asked whether a trial period could be put in place with the claimant, but, HR stated that the respondent didn’t operate probationary periods. The respondent had no further discussion with the claimant about what adjustments might be needed. Advice was not sought from occupational health (OH), nor did the respondent give the claimant the opportunity to discuss issues raised with an OH professional. The claimant was told that he was now not suitable for the role. The respondent explained that the adjustments in relation to the telephone calls couldn’t be made. The ET found that it would have been a reasonable step for the respondent to take to allow the claimant to work from another office if one was free. Physical files could have been taken to the office and telephone calls could have been diverted to a mobile phone so the claimant could take the calls in another office. While there was no guarantee that another office would always be available, the ET concluded that there was a reasonable chance that another office would be available on a sufficient basis for this adjustment to have a chance of alleviating the disadvantage. Consequently, the ET found that the respondent had failed to make reasonable adjustments to allow the claimant to work in another office if one was free. It also found that the respondent failed to make reasonable adjustments in that they didn’t provide a trial period or an enhanced induction. The claimant was awarded £16,969 in compensation. n
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| Professional in Payroll, Pensions and Reward |
Issue 95 | November 2023
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