Welcome back everyone to our case of the week. My name is Renee, and I will be discussing the case of South Gloucestershire Council v Ms Pavandeep Hundal. Last week, we examined the Employment Appeal Tribunal case of Notaro Homes Ltd v Keirle & Others, which focuses on the issue of contributory fault. If you missed it, click here. We also had an exciting announcement from Yoga HR, changes to how the national minimum wage is calculated, and a new protected characteristic!

Background

Ms Hundal, a former employee of the Respondent, South Gloucestershire Council (‘Council’), filed a claim against her employer alleging disability discrimination.

The Claimant was an agency social worker on a fixed term contract ending in September 2019.  There was a common expectation that she would become a member of staff with the Respondent after.

The Claimant had a number of absences as a result of her disability, endometriosis.  As a result, the Respondent extended the Claimant’s engagement until December 2019.  The Claimant was absent again between 10-15 October 2019, her longest period of absence.  The Claimant was called for a supervision meeting on 17 October 2019. The Claimant’s contract was terminated on 22 November 2019.

The Tribunal held that the Claimant’s dismissal constituted direct disability discrimination.  The Claimant along with two other locums worked at the Yate office. However, the decision to give one of the other locums the role that the Claimant meant to fill was seen as less favourable treatment by the Tribunal.

The Respondent admitted that had the Claimant been exceptional, she might have sought her a new role.  However, she instead labelled the Claimant ‘as good’.  The Respondent further stated that the Claimant was less reliable because of her sickness absence record.  The Tribunal concluded that the Claimant was less favourably treated than the comparator locum because of her disability.

The Tribunal found that despite the Claimant’s positive feedback on her performance and skills, her contract was terminated due to disability. The Respondent failed to implement reasonable adjustments such as working from home to support the Claimant’s disability. The Council had failed to refer her to occupational health services despite their knowledge of the Claimant’s ongoing disability.

   

The Employment Tribunal ruled that the Council terminated the Claimant’s employment due to absences relating to disability. Although the Tribunal misinterpreted this as a direct disability discrimination, it correctly determined that the Respondent did not prove that the action taken was a proportionate way to achieve a legitimate objective.

The Employment Appeal Tribunal (EAT):

The EAT found that the ET had erred in implementing the legal standard for determining direct discrimination instead of focusing its attention on whether the Claimant’s treatment was related to her disability and whether this was proportionate.  Therefore, the EAT set aside the direct discrimination decision.

Summary

The EAT held that there was potential for the Council to assist the Claimant in her improving her attendance at work. Therefore, the Tribunal concluded that the Claimant’s termination was unjustified and there were no legal errors found in their decision.

This case is crucial because it highlights the importance of fairness, reasonable adjustments, and proper justification when dealing with disability related issues.

Takeaway Points

Employers should ensure that their procedures are regularly reviewed and enhance the equality and procedures that promote inclusion.  Failure to explore reasonable adjustments can undermine your credibility in dismissal claims.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.