Employee discriminated against because of his wife's disability
Bainbridge v Atlas Ward Structures Ltd ET/1800212/12
Date added: 30 August 2012
disability discrimination | associative discrimination | fixed-term contracts
As this case demonstrates, it is unlawful for an employer to discriminate against an employee by treating him or her less favourably than others because of someone else’s disability.
Employers should take care not unintentionally to discriminate against employees who have caring responsibilities for disabled people.
Although employers are not obliged to make reasonable adjustments for such employees, they should treat them fairly and no differently than other employees.
Employers should ensure that a decision regarding an employee’s continued employment is supported by evidence and made on a non-discriminatory basis.
Atlas Ward Structures Ltd is an engineering firm that employs around 1,000 workers. In December 2010, Mr Bainbridge was employed by the company as a welder, working at its Malton factory. He was taken on as a “temporary employee” under a three-month fixed-term contract. It was the company’s practice to have several employees on temporary contracts and use their renewal or non-renewal as a way of managing their labour requirements. Mr Bainbridge’s work was well regarded by the company, and his contract was renewed in March and July 2011. At this time, there were 12 welders employed on temporary contracts. His wife suffered from medical problems, and the company later conceded at the tribunal hearing that she is disabled for the purposes of discrimination law.
In late September and October 2011, the company’s works director, Mr Pratt, reviewed the Malton factory’s labour requirements. He decided that the company would no longer need one welder and one paint sprayer. Mr Pratt consulted the factory floor supervisors and selected the workers who were not to have their temporary contracts renewed, one of whom was Mr Bainbridge. Mr Pratt instructed Mrs Woodhead, who dealt with personnel matters at the factory, to write to Mr Bainbridge informing him that his contract would not be renewed.
Mr Pratt told Mr Bainbridge in person that his contract would not be renewed. Mr Bainbridge was “shocked”, as he had not understood that there was any likelihood of redundancies, and had expected to be kept on when his contract came to be renewed. He asked Mr Pratt why he had been selected, but did not receive an answer.
Mr Bainbridge asked Mrs Woodhead the same question, and told her that he believed that the reason was his wife’s disability. He suggested that the amount of time that he had had to take off work, particularly at short notice, had “irritated” Mr Pratt, and this was why he had been selected. The tribunal later found that all of the time that Mr Bainbridge had taken off work, including at short notice, had been with the permission of the company. He had used his holiday entitlement, save for one occasion when he was allowed additional special leave to miss a night shift. Mrs Woodhead assured him that he had not been selected for this alleged reason, but could not provide the real reason.
On 12 October 2011, Mr Bainbridge lodged an appeal against what he called the “termination of his employment on the grounds of discrimination by association”, having taken advice from Acas. On 14 October, Mrs Woodhead wrote to Mr Bainbridge offering him a contract extension of four weeks, to finish on 25 November 2011. He accepted that offer, and continued working beyond his original termination date of 4 November. Mr Bainbridge’s wife required more help from him and, on 21 October, he informed the company that he would not be attending work as he needed to look after her. He did not attend work again, believing that he had been discriminated against.
On 16 November 2011, Mrs Woodhead sent Mr Bainbridge her response to his appeal. She stated that, as he had only ever been on a temporary contract, he could not have had any expectation of “continued, longer-term employment”. Further, the company’s requirements for labour had ceased, as future orders were “drying up”, and Mr Bainbridge had, effectively, been made redundant.
At no point, including in his appeal outcome letter, was Mr Bainbridge provided with a reason as to why it had been him, rather than any of the twelve or so other welders in the same temporary position, who had been selected not to have his contract renewed. Mr Bainbridge claimed that the company had directly discriminated against him, on the ground of his wife’s disability, when it selected him, out of several employees in comparable positions, not to have his contract renewed.
The employment tribunal stated that the crucial issue was causation: why had Mr Bainbridge's contract been selected for non-renewal? On the evidence before the tribunal, Mr Bainbridge was well respected, experienced and qualified, and generally well regarded by the company. His attendance record, save for the periods of leave he had taken at short notice, was good - there was "no obvious or apparent reason” why he had been selected. Mr Bainbridge’s unchallenged evidence was that other employees who had been taken on after him had had their contracts renewed.
Mrs Woodhead was “pressed repeatedly” to explain the reason for Mr Bainbridge’s selection, but was unable to do so, although she understood that the decision would have taken into account the factory’s need for workers, particularly in terms of “flexibility and versatility”. The tribunal accepted Mr Bainbridge’s evidence that he was a flexible and versatile worker. Mrs Woodhead accepted that his absences at short notice might have caused problems “from time to time”, but was not aware of any, and no one had mentioned anything of that sort to her.
The tribunal accepted, “in the absence of any other plausible reason”, that Mr Bainbridge had been selected because he had, on occasion, taken leave at short notice, causing the company some inconvenience. The tribunal found that “faced with the need to select workers, [the company] had decided to remove this possible future source of inconvenience...by selecting Mr Bainbridge”. It had directly discriminated against him. The tribunal made this finding as a matter of fact, without regard to the burden of proof in discrimination cases. The tribunal stated, however, that applying the burden of proof would have led to the same result.
Mr Bainbridge sought a recommendation that he should get his job back. The company’s factory was close to his home, and he enjoyed working there. The company did not oppose this, and was likely to have a suitable vacancy within the next three months.
The tribunal awarded Mr Bainbridge £10,500 in compensation and made a recommendation that:
- no later than 8 September 2012, the company should offer Mr Bainbridge a position as welder on his previous terms and conditions, giving him no less than two weeks’ notice to accept or reject the offer;
- if Mr Bainbridge returned to work, he should be treated as having been continuously employed since 14 December 2010; and
- the company pay compensation to Mr Bainbridge to cover any financial losses he had suffered from 30 May 2012 until his reinstatement.
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