Fri 22 Jan 2021

Employment Tribunal Discrimination Round-up January 2021

Dismissal for unacceptable attendance amounted to disability discrimination

Mr A Hurle v London Fire Commissioner: 3202069/2019

An Employment Tribunal (ET) has found that the dismissal of a disabled fire station manager for poor attendance was discriminatory. Mr Hurle had been off work for several months with depression. He had commenced a new role for which he was required to undertake training at a station more than two hours away. Mr Hurle had made the employer aware of the stress this was causing him and of his wish to transfer to a station closer to his home. Mr Hurle became aware of a station manager vacancy at Feltham in south-west London, which would save him commuting time. The Respondent refused to allow the claimant to be transferred on the basis that they had a policy of not allowing a station manager in development to be put forward for a transfer. The ET held that the employer had discriminated against Mr Hurle by failing to make the reasonable adjustments of adjusting the policy on transfers and by failing to put him forward for vacancy at Feltham. The ET also held that the employer discriminated against the claimant by subjecting him to a disciplinary procedure and dismissing him for poor attendance which was linked to his disability. This case highlights the need for employers to fully consider the reasonable adjustments they can make to support a disabled employee and the need to objectively justify a dismissal for a reason related to disability.

Racially abusive messages in private WhatsApp group amounted to harassment

Miss M Abdi v Deltec International Courier Ltd: 3332521/2018

An Employment Tribunal (ET) has found that an evening operations clerk at Deltec International Courier Ltd was the victim of harassment on the grounds of sex, race and religious belief. The claimant, Ms Abdi was black, of Somali origin and wore a hijab. She raised, among others, a claim for unlawful harassment after seeing the contents of her colleagues' WhatsApp group chat, which included highly offensive and threatening messages about the claimant. Although she was not a member of the group, the claimant came across such messages in the chat on two occasions.  The messages referred to “f***ing immigrants” and in reference to the claimant said that they wanted to “shut this terrorist up” before they “rip her headscarf off”. The ET found that the content of the WhatsApp discussion constituted harassment as the messages amounted to unwanted conduct that had the effect of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for the claimant. The ET described the office environment at Deltec International as "chaotic and juvenile" and one where "inappropriate language was commonplace." It was also critical of the way the Respondent dealt with the matter, which will likely impact on the amount awarded to the claimant at the remedy hearing scheduled to take place in early 2021. This case highlights that employers can be responsible for discriminatory conduct which takes place virtually just as they can be for such conduct in real life. Employers should be alert to the risk of casual discrimination occurring in online working, the use of which has dramatically increased due to the Covid-19 pandemic.

Compensation for employee told to resign due to pregnancy complications

Mrs N Agarwal v St John Freight System UK Ltd: 3200221/2019

A pregnant employee who was successful in a discrimination claim against her employer has been awarded £18,405.97 for loss of earnings and injury to feelings. This award included an uplift for breach of the ACAS Code and interest. The employee had been told that she should resign after informing her manager that she was suffering pregnancy complications and was in hospital. Her employer also changed her hours of work after she tried to return from her maternity related absence, increasing them from 9am-3pm to 9am-5:30pm. In its judgment, the Employment Tribunal found that both actions by the employer amounted to unfavourable treatment because of pregnancy or illness as a result of pregnancy contrary to section 18 of the Equality Act 2010. Although the tribunal accepted that the employee's manager didn't decide that he did not want her back because she was pregnant, it did find that he used the opportunity of her absence to impose a change in her working hours, which he would not have imposed otherwise. This case serves as a reminder to employers that a Tribunal will look at decisions taken and compare these with what the employer would have done had the employee not been pregnant.

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