Exclusively Employment Law Solicitors
This weeks’ case could be compared to a can of worms. This weeks’ case is about disability discrimination, there are several claims and questions but we have tried to keep the summary as succinct as possible.
The two questions this week are;
Do reasonable adjustments have to be performance related?
Is cutting off access to email for a long term absentee disability discrimination?
Mr Chawla, the Claimant was employed as an IT support worker by Arcsight. In 2007 he was signed off work with stress. In 2010 Arcsight was acquired by Hewlett Packard, the Respondent, the Claimant was TUPE transferred over but remained off work due to sickness.
The Respondent had a policy of restricting email access for employees on long term absence. Due to this the Claimant was delayed in joining the Respondent’s share purchase plan and it also prevented him from exercising share options with his previous employer, incurring a large tax expense.
The Claimant raised several grievances including;
– Not finding out about the right to exercise share options until a year after all other staff.
– No consultation regarding the merger between Arcsight and the Respondent.
– Failure to inform him of changes in terms and conditions of employment.
– Delays in joining the Respondent’s share plan.
Upon rejection of these grievances the Claimant bought several claims to Tribunal including disability discrimination for failure to make reasonable adjustments. The Claimant stated that as he was off work with long term sickness the company needed to adjust its email restriction policy to keep him informed on issues such as TUPE and share options.
The Tribunal upheld this claim finding that despite not being performance related, preventing the Claimant from accessing emails constituted as a provision, criterion or practice (PCP) which required reasonable adjustments. The Tribunal also found that the Respondent had also directly discriminated against the Claimant by preventing him from joining their share scheme at the same time as other employees. Lastly the ET held that the Respondent had breached TUPE regulations when transferring
However claims for harassment, injury to feeling and personal injury were rejected with the Tribunal finding the Respondent’s conduct only exacerbated an existing medical condition. The Claimant appealed this decision and the EAT held that the employment tribunal had erred in making no injury to feelings award in respect of stress generated by the reasonable adjustments failure. The EAT increased the Claimant’s overall award.
The case raises several points.
When dealing with reasonable adjustments make sure that all policies, criterion and practices are assessed not just those that affect performance.
Be sure that all staff who are absent are kept well informed on any company matters such as redundancy or TUPE.
When employees off sick need to be informed of potentially upsetting or sensitive company issues be sure to have some framework or procedure in place to prevent the sensitive topic exacerbating their illness.