In Ty-Systems Ltd v Lewis an unreported Employment Appeal Tribunal case the employee concerned was part of a group who had been asked to change shift pattern. Following a consultation process everybody else in the group had agreed to make the change. One employee who was disabled for the purposes of the Equality Act 2010 by reason of her Type 1 diabetes, felt uncomfortable about making a decision until a medical report had been obtained in relation to the impact the new work system might have on her health. (Bear in mind that the consultation commenced only a month after the individual had had a hypoglycaemic episode at work and had been signed off for a three week period).
The employer was undoubtedly influenced by the fact that there’d been other problems with this employee. She’d made disparaging comments about the company to a customer and had been admonished for this breach of fidelity it was probably also frustrated, wanting to proceed with the changes so it decided to dismiss her, taking the attitude that the employee was impending progress.
The employee brought a claim of disability discrimination under section 15 of the Equality Act 2010 which is the section that relates to being treated unfavourably because of something arising in consequence of a disability, namely the lack of a medical report related to the individual’s disability and its unavailability hindering her decision making. The tribunal found that dismissal in connection with this was not a proportionate means of achieving a legitimate aim of implementing the new working pattern because there was no reason why the matter couldn’t either await the medical report or why the new shift pattern couldn’t commence without the employee’s involvement.
The Employment Appeal Tribunal went on to dismiss the employer’s appeal it emphasised that unfavourable treatment is that which puts the disabled person at a disadvantage – it’s not necessary for there to be a mental process leading to the discriminator behaving in that manner. Thus no intention is required. Dismissal is always going to be unfavourable treatment unless it’s a very rare situation where the employee actually wanted to be dismissed.
It agreed that the employee had been dismissed because of her indecision and her indecision flowed from her disability so the causation part of section 15 was satisfied in the absence of any objective justification for this treatment her claim therefore had to succeed.
This case is an illustration firstly of a principle I see in operation often: what may seem urgent or important at the time you are going through it, often with the benefit of hindsight once you get to an Employment Tribunal doesn’t look quite so important or urgent – in this case the tribunal felt that the employer could have afforded to wait for the medical report indeed it would seem churlish to have applied for the report and not waited to see what it said.
Secondly this case illustrates that section 15 of the Equality Act is becoming increasingly important. In any case where you are dismissing somebody who has a health problem you need to be alive to the likelihood of them running such a claim and have prepared your objective justification for the dismissal. You can’t help but think the employer might have been in a stronger position if they had waited to get the medical report – if it had said that the employee was fully fit to work the new shift pattern then she’d already agreed she would do so. If it had said she couldn’t then they would have been in a stronger position to dismiss at that point and avoid the claim.