Disability, discrimination, comparators

25 April 2019

This article was featured in the May 2019 issue of the magazine.

Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases

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. 


...a reasonable employer would have made appropriate enquiries into the employee’s medical condition... 


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 employer.

Having been employed by the National health Service (NHS) since 2005, at the time in question the claimant was a medical secretary working directly under a medical consultant. Jolly was required to maintain and oversee a list of patients who were awaiting breast cancer and non-urgent surgery. Patients on this list would sometimes have to wait a maximum of 52 weeks before an operation could be arranged, and it was the claimant’s responsibility to notify the consultant when this deadline was approaching. 

In 2015, the claimant’s duties were changed as part of the Trust’s decision to upgrade to electronic record keeping, meaning she would require further training. Although a training session was arranged, it had to be cut short as the trainer was unaware of how to use the system and was never rescheduled. During this time, the employee was regularly subjected to comments from colleagues relating to her age, including expressing concern they were worried about finding her ‘dead on the floor’. 

A short while after this, in 2016, the claimant was told she was to be suspended and was escorted off the premises. During this impromptu meeting she was informed of three serious breaches of the 52-week waiting list deadline that had occurred over a period of two years. The claimant had no knowledge of two of the incidents as these had never been brought up before. It was also revealed that although the third supposed incident had not been her fault her employer used it in subsequent decisions. 

Following this, the claimant was invited to a capability meeting which she was unable to make as her union representative was not available; she was also unable to make the rearranged date as this clashed with a pre-existing medical appointment. Despite informing her employer of this they proceeded to hold the meeting without her and informed her that she should have changed the appointment to an earlier date. 

The claimant raised a grievance directly with her employer claiming she was being treated unfairly as a direct result of her age. However, following the meeting she was dismissed on the grounds of ‘catastrophic failure in performance, where damage had been caused to patients as well as potentially the Trusts’ reputation’. Jolly appealed but was incorrectly told the appeal had been submitted too late. Accordingly, she proceeded to raise claims to the ET for unfair dismissal, breach of contract and both age and disability discrimination. 

All of Jolly’s claims were upheld by the ET which found the whole disciplinary process had been ‘tainted by discrimination’. It was decided that the claimant’s lack of training and the hurtful comments made towards her violated her dignity and meant she had been treated differently to other staff due to her age. The Trust was unable to demonstrate any evidence to counter the assertion that they had discriminated against Jolly due to her age and the significant errors in their disciplinary process rendered the decision unfair. 

Employers are reminded that staff should not be treated any less favourably due to their age and that any perceived issues with capability should be dealt with in the correct manner. A considered approach is needed when dealing with capability and employers should take time to consider where appropriate training may offer a more favourable solution. 


...employers should take time to consider where appropriate training may offer a more favourable solution


Asda Stores Ltd v Brierley and ors 

In this case, the Court of Appeal (‘the Court’) was assigned the task of determining whether Asda store workers could use the firm’s warehouse staff as comparators in claims for equal pay. 

The decision is the latest in a long-running dispute involving thousands of Asda staff, which began as far back as 2002. The case centres around claims that the company’s store workers, who are predominantly female, are unfairly paid less than warehouse staff who are predominantly male. If successful, the store workers could be set to receive millions of pounds in back pay.

A key part of any equal pay dispute is the claimant’s ability to identify a comparator, with both the ET and EAT agreeing that the store workers could compare themselves to warehouse staff under existing European law. The ET and EAT cited Article 157 of the Treaty on the Functioning of the European Union which states an equal pay comparison could take place using a comparator from a different workplace where pay terms have been established by one single source. This essentially meant that because both sets of workers were employed by Asda, albeit in different locations, there remained a single source for determining pay and conditions. It was also decided that both sets of workers operated under common terms, which would apply to them regardless of where they worked. 

Asda appealed these findings to the Court, which upheld the rulings of the tribunals. The Court confirmed that common terms applied to both sets of workers independently regardless of where they actually worked, meaning that retail workers could compare their pay to warehouse staff. It was also added that Asda could be recognised as a single source responsible for paying both sets of workers, even though these duties were carried out by differing internal bodies. 

In rejecting the appeal, the Court confirmed that Asda’s store workers are free to use the company’s warehouse staff as comparators in their claim for equal pay. 

There are, however, still two more stages for the employees to successfully navigate under the Equality Act 2010. They will first be required to show that they were carrying out ‘work of equal value’ in comparison to the warehouse staff, following which Asda will have the chance to argue that there is another material factor, not relating to gender, for the difference in pay. 

The final decision in this case is set to have significant ramifications for employers in similar positions, with Tesco, Sainsbury’s and Morrisons also facing equal pay claims from their retail staff. Although equal pay claims can be complicated, employers should note that staff may be able to argue they are being paid unfairly based on their gender, even if their comparator does not work in the same role. To guard against this, employers are encouraged to engage their human resources and payroll departments to regularly review employees’ salaries and job roles, making sure that pay rates remain fair and equal wherever work is similar or of a similar value.