In the employment tribunals: April 2012

XpertHR provides summaries of recent employment tribunal rulings. 

Requiring Christian employee to work on Sundays was not religious discrimination
Call-centre worker fairly dismissed for offensive Facebook comments about colleague
Discrimination arising from disability: paramedic's theft of anesthetic gas not a consequence of depression
Discrimination arising from disability: lecturer forced to move to inferior contract wins Equality Act claim

Note: The decisions are not binding on other tribunals and are intended to provide illustrations for employers of situations that have led to tribunal claims. They are reported on XpertHR as soon as the transcript becomes publicly available, which is normally four to six weeks after the judgment has been made. 

Requiring Christian employee to work on Sundays was not religious discrimination

Mba v Mayor and Burgesses of the London Borough of Merton ET/2350743/10

Date added: 26 April 2012

religion or belief discrimination | indirect discrimination | Christianity | working on Sundays

In this decision on the manifestation of religious belief in the workplace, the tribunal held that the employer’s business requirements outweighed the Christian claimant’s desire not to work on Sundays because she believes that it is a day of worship and rest. 

Practical tips

This case provides a good example of how employers should deal with an employee whose religious beliefs conflict with workplace requirements. 

Employers do not have to do everything possible to accommodate the employee’s wishes. Employers should act reasonably and, if they cannot accommodate the employee in full, consider and offer alternatives. 

At the time of the tribunal hearing, there were no notes available of Ms Mba’s job interview, where she mentioned her religious beliefs. Employers should always take accurate records of interviews, which may be important evidence if the employee later brings a tribunal claim. 

Ms Mba is a practising Christian, and believes that Sunday is a holy day on which engaging in rest and religious observance is required by the Ten Commandments. On Sundays, she attends church services and carries out a ministering role in the community. In July 2007, she began work as a residential care officer at Brightwell, a registered children’s home, which provides short residential breaks (on average, between two and four days) for children with serious disabilities and complex care needs. 

At the relevant time, the home was generally open 24 hours a day, seven days a week. The respondent operated a shift rota organised according to certain operational requirements, including those of the “National minimum standards for care homes”. These require that the staff group in day-to-day contact with children should include staff of both genders wherever possible, and that staff left in charge have “substantial relevant experience”. The standards also emphasise the importance of continuity of care for children. 

The shift rota was prepared by the home’s deputy manager, Ms Lawson, in a way that she thought was fair to staff. For example, no one had to do an excessive amount of weekend work, which was unpopular. When Ms Mba started work at the home, there were nine full-time positions, only five of which were occupied (including her position). The vacant positions were covered by agency and bank staff. 

The tribunal found that, during Ms Mba’s job interview, Mr Deegan (the home manager) explained that, as per the job description, all staff needed to work a shift rota that included weekends. Ms Mba said that she would have “some difficulties” working on Sundays due to her church-related activities. She did not say – and Mr Deegan did not appreciate that – her religious beliefs meant that she could never work on Sundays. 

The tribunal found that Mr Deegan indicated to Ms Mba that it would be possible to accommodate her commitments. Whether or not he used the word “temporary”, this was what he meant, and he did not say anything about a permanent change to the usual rota requirements for her. The tribunal found that Ms Mba genuinely believed at the time that her religious beliefs would be “accommodated in full”, but that this was a case of her “hearing [what] she wanted to hear”. Her contract set out the shift times, and stated that shifts would be “as dictated by [the] manager to meet the needs of the service”. 

In an email to Ms Mba dated 8 August 2007, Ms Lawson said that she understood that Ms Mba had church commitments that made working on Sundays “difficult”. She said that, although a contractual change was not possible, provided that the home was still using agency and bank staff it was “likely to be possible” that the rota could be organised so that Ms Mba worked every Saturday and had every Sunday off. She said that Ms Mba might occasionally need to use an annual leave day to “facilitate this arrangement”. Ms Lawson said that she had drafted the rota until Christmas 2007, and saw no potential problems with Ms Mba’s not working Sundays until then. 

In 2008, Ms Lawson started rostering Ms Mba for Sundays, but marked them as part of her annual leave, because she was becoming concerned about the length of time that the arrangement had lasted, and because she wanted to be fair to the other staff. Ms Mba was working three weekend days in each three-week shift cycle (three Saturdays and no Sundays), whereas they were working four weekend days. 

On 11 March 2008, Ms Mba emailed Ms Lawson. She said that it saddened her greatly to have to use annual leave to “worship the Almighty God”, and asked management to reconsider. In spring 2008, Mr Deegan told Ms Mba that he was planning to recruit more permanent staff and, the tribunal found, that he would ask candidates whether or not they would be prepared to work on Sundays, to cover her Sunday shifts. In the event, he was unable to recruit any more female permanent employees during Ms Mba’s employment. 

Around September 2008, Mr Deegan offered Ms Mba the choice of working either morning or night shifts when she was rostered on a Sunday, rather than the usual mixture, so that she could carry out her religious commitments. The tribunal found that, at this stage, Mr Deegan had not yet appreciated that Ms Mba objected to working at all on Sundays. Ms Mba rejected the proposal. 

Around the same time, Mr Deegan told Ms Mba that the cost of using agency workers to cover her Sunday shifts was “unsustainable”, but agreed that she would not be required to work on Sundays for three more months, until the end of 2008. Mr Deegan confirmed his position in an email dated 1 October 2008, saying that he believed management had been “incredibly flexible”, and noting that Ms Mba had not worked any Sundays to date. He said that, from January 2009, he expected her to honour her contract and work in the same manner as the rest of the team. Ms Mba remained free to swap shifts with other permanent staff, provided that the operational requirements such as balance of seniority and gender were maintained. The tribunal rejected any suggestion that Mr Deegan’s decision in his email of 1 October 2008 was motivated by any hidden agenda or hostility toward Ms Mba or her beliefs. 

In December 2008, Ms Mba remained unhappy with Mr Deegan’s position, and he escalated the matter to his manager, Ms Songui, who treated it as an informal grievance. On 17 February 2009, she wrote to Ms Mba with her conclusions. She set out why the arrangement was problematic for the home and said that, although she believed that management would be willing, where possible, to accommodate requests in respect of particular faith days, having specific weekly days off could not be guaranteed. Ms Songui confirmed that Ms Mba would be rostered to work two weekends in three from 30 March 2009 and that, if she wanted to take annual leave or swap shifts with colleagues on Sundays, this would be considered in light of other employees’ leave requests and the needs of the service. 

Ms Mba’s appeal against this decision was rejected by another manager, Mr Wyatt, who confirmed that she would be rostered according to the normal schedule from 13 July 2009. The tribunal found that, by this time at least, it was apparent to Mr Deegan that Ms Mba held a religious belief that she should not work at all on Sundays. 

Despite a reminder from Mr Deegan, Ms Mba did not attend work on 26 July 2009, which was the first Sunday that she was rostered for after Mr Wyatt's decision. On 7 August, Mr Deegan wrote to Ms Mba again, stating that she was scheduled to work on Sunday 9 August, and that this was a management instruction. He warned her that he would be forced to consider disciplinary action if she did not comply. Ms Mba failed to attend for Sunday work on 9 August, 20 and 27 September, and 18 October 2009. Mr Deegan issued Ms Mba with a second management instruction, but she did not attend for Sunday work on 1, 8 and 22 November, and 20 December 2009, and 3 and 10 January 2010, despite being paid for those days. 

A disciplinary hearing took place on 29 January 2010. On 4 February, the disciplinary officer, Ms Hignett, wrote to Ms Mba with her decision. She accepted management’s case regarding the difficulties that would be posed if Ms Mba were allowed permanently to avoid working on Sundays, and said that management had been flexible and Ms Mba inflexible. She had found nothing to support Ms Mba’s allegation that Muslim staff had been treated more favourably in being allowed time off for Friday prayers. She described Ms Mba’s behaviour as potential gross misconduct, but concluded that the appropriate sanction in the circumstances was a six-month written warning. Ms Mba appealed. Some of her points were dealt with as a grievance, which was rejected, as was her appeal against the disciplinary sanction. On 30 May 2010, Ms Mba resigned, stating that there was a “direct conflict between [her] faith…and Sunday work at Brightwell”. She claimed indirect discrimination on the ground of religion or belief, and constructive dismissal. 

The respondent agreed that it had applied a provision, criterion or practice (PCP) to Ms Mba, which was that staff were required to work Sunday shifts in accordance with the rota. It also agreed that this PCP would put persons of the same religion as Ms Mba at a particular disadvantage when compared with others, and that Ms Mba was put at such a disadvantage. 

The only matter for the tribunal to resolve was whether or not the PCP was justified as a proportionate means of achieving a legitimate aim, which required the tribunal to weigh the discriminatory impact on Ms Mba against the reasonable needs of the respondent. 

The tribunal rejected Ms Mba’s argument that requiring her to work on Sundays was in itself an unlawful instruction that constituted a direct breach of art.9 of the European Convention on Human Rights, which provides the right to freedom of thought, conscience and religion. The tribunal observed that an interference with religious observation that constitutes a proportionate means of achieving a legitimate aim is likely to be lawful under both art.9 and in terms of indirect discrimination on the ground of religion or belief. It cited previous case law that established that art.9 “does not require that one should be allowed to manifest one’s religion at any time and place of one’s choosing”, and “does not protect every act motivated or inspired by religious belief”. 

The tribunal found that neither insisting that Ms Mba worked on Sundays nor taking disciplinary action against her when she failed to do so was a breach of any express contractual term. 

The tribunal rejected Ms Mba’s allegation, regarding management’s concerns as to the business impact if she were not to work on Sundays permanently, that “there was no business need, only a determined attempt by an employer to force an employee to choose between her faith and her employment”. It also rejected Ms Mba’s argument that the respondent, via Mr Deegan, “deliberately put a series of obstacles in the way of [her] exercising her belief that she should not work on Sundays”. On the contrary, management had made substantial attempts to try to accommodate her beliefs. The business considerations of the respondent were genuine, and constituted a legitimate aim, which was to ensure:

  • an appropriate gender balance on each shift;
  • an appropriate seniority mix on each shift;
  • a cost-effective structure in the face of budgetary constraints;
  • fair treatment of all staff;
  • compliance with legal limits on working time;
  • continuity of care for children; and
  • limited use of agency and bank workers. 

The tribunal accepted that the PCP impacted on Ms Mba’s “genuinely and deeply held religious belief and observance” but held that it was, on balance, a proportionate means of achieving the legitimate aim. In terms of the degree of disadvantage to Ms Mba, the tribunal noted that the respondent had made efforts to accommodate her wishes for two years, and was prepared to arrange her shifts in a manner that enabled her to attend church each Sunday. The tribunal also noted that Ms Mba’s belief about Sunday work was not a “core component” of the Christian faith. This finding was supported by Bishop Nazir Ali’s witness statement in support of Ms Mba, which stated that “some” Christians will not work on the Sabbath. 

The tribunal also found that, even though the home had not filled all its permanent positions during Ms Mba’s employment, there were no viable or practical alternatives to requiring her to work shifts in the same manner as the other staff. The tribunal rejected all of the alternatives that Ms Mba put forward, which were as follows:

  • Scheduling a colleague, Ms Ahmed, to undertake Ms Mba’s Sunday shifts. Ms Ahmed was the only member of staff with whom Ms Mba could swap shifts without raising the problem of either gender or seniority imbalance. She was already scheduled to work two Sundays out of three so, even if she had been willing to, she was not able also to cover two out of every three Sunday shifts for Ms Mba. 
  • Recruiting an additional female permanent employee to cover Ms Mba’s Sunday shifts. The home had attempted to do this, but had been unsuccessful. 
  • Use of bank and/or agency workers to cover Ms Mba’s Sunday shifts. This had undesirable cost consequences, and agency staff, who were cheaper than bank staff on Sundays, were generally less well-trained and experienced than permanent staff. 
  • A colleague, Ms Alviz, working Ms Mba’s Sunday shifts. This would have meant Ms Alviz working more than 48 hours per week, and there were concerns about her sickness record. Further, Ms Alviz was on a higher rate of pay than Ms Mba and, as the tribunal noted, “workers do not usually volunteer to work for lower rates of pay than they are entitled to”. 
  • Using the respondent’s “outreach” team. This was a different service, which worked with children in the community on weekdays. The tribunal agreed with the respondent’s conclusion that it was not viable to swap Ms Mba’s Sunday shifts with an outreach worker’s Thursday and Friday shifts. 

The tribunal rejected Ms Mba’s discrimination claim. On this basis, it found that there had been no breach of the implied term of trust and confidence, and also rejected the claim for constructive dismissal. 

Case transcript of Mba v The Mayor and Burgesses of the London Borough of Merton (PDF format, 1.54MB) 

Additional resources

Call-centre worker fairly dismissed for offensive Facebook comments about colleague

Teggart v TeleTech UK Ltd NIIT/704/11

Date added: 26 April 2012

unfair dismissal | gross misconduct | human rights | social media | Facebook

A Northern Ireland industrial tribunal has provided a useful example for employers of circumstances in which it can be fair to dismiss an employee for offensive comments made about a work colleague on Facebook. 

Practical tips

The dismissal of an employee who makes offensive comments on social media about a colleague or comments that make reference to the employer may be within the range of reasonable responses. 

However, an employer should consider any case like this on an individual basis, for example taking into account whether or not it was a one-off incident that the employee took steps to rectify immediately; the real likelihood of the employer being brought into disrepute; and the employee's knowledge of the rules. In some cases, a warning may be appropriate for a first offence. 

An employee who has made offensive comments publicly on social media cannot use the argument that his or her privacy has been violated by the employer. Once an employee posts something publicly on social media, it ceases to be private. 

Mr Teggart worked for TeleTech UK Ltd, which provides call-centre services for a number of clients. Mr Teggart's "friends" on Facebook included some work colleagues. While on his computer at home, Mr Teggart posted a message on his Facebook page about A, a female employee at TeleTech, that said: "Quick question who in TeleTech has [A] not tried to fuck? She does get around!" A number of people posted comments in response to this message. 

A, who was known to Mr Teggart but was not a friend, was told about the comments by a work colleague. She spoke to Mr Teggart's then girlfriend to ask that the comments be removed. In response to this request, Mr Teggart posted another comment on Facebook that said: "[A] can go and suck donkey dick … LOL." Again, a number of individuals made comments. 

Mr Spence, who appears to have known both Mr Teggart and A but was not, apparently, an employee at TeleTech, emailed the company the comments and suggested that they were "in breach of company policy". Mr Riddiough, the service delivery manager, spoke to A, who said that she was upset, physically distressed and tearful. Mr Riddiough did not, however, conduct a formal investigatory meeting with A, record what she had said or obtain a statement from her. 

At an investigatory meeting, Mr Teggart, who accepted he was the author of the comments on Facebook, was suspended. Mr Teggart was invited to a disciplinary hearing to take place a few days later, with the invitation letter accusing him of gross misconduct on the basis that:

  • he had "made inappropriate comments on Facebook on multiple occasions in relation to fellow employee [A] which the company may consider to constitute bullying and harassment"; and
  • his "use of TeleTech's name in association with these comments within a social media forum may bring the company into disrepute". 

On receiving the disciplinary letter, Mr Teggart commented on Facebook that, while he was not going to apologise to A, "[his] intention was not to upset [her] just take the piss a bit but seems as if [she] may have taken it a bit to [sic] seriously so [he'd] knock it on the head". 

At the disciplinary hearing, Mr Teggart's arguments in his defence included that: 

  • he had not intended to offend A;
  • he was entitled to make any comments that he wanted on his personal Facebook profile;
  • the reference to "TeleTech" was an abbreviation for telecommunications or technical and not a reference to the company;
  • he considered the matter to be "fun or a joke"; and
  • he was under the influence of alcohol when he posted the Facebook comments. 

The company dismissed Mr Teggart for gross misconduct on the basis that "he [had] made multiple postings on a social media site regarding a fellow employee, one of which made reference to TeleTech". The company stressed that it considered that Mr Teggart had harassed A and, in mentioning TeleTech, had brought the company into disrepute. This was contrary to the company's disciplinary policy, which lists "bringing the company into serious disrepute" as an example of gross misconduct. 

On appeal, Mr Teggart was critical of the company's investigation. He argued that the company's code of conduct did not cover action in employees' personal life or personal use of the internet. Mr Teggart pointed out that expressing his personal opinions, not made on behalf of the company or using its equipment, had been inappropriately brought into the workplace by another person. Mr Teggart also argued that TeleTech had violated his human rights, namely the rights to respect for his private life and freedom of expression, and the right to manifest his beliefs. Mr Teggart's appeal was unsuccessful and he claimed unfair dismissal. 

The industrial tribunal accepted that there were problems with the investigation stage, but went on to say that, where the factual matters that give rise to a charge are accepted by the person charged, usually the investigation need not be as extensive or detailed as would normally be expected. 

The industrial tribunal considered the company's stated reasons for dismissal - that Mr Teggart had brought the company into disrepute and he had harassed A - separately. 

In relation to bringing the company into disrepute, the tribunal found the disciplinary panel's approach to be seriously flawed. While it was reasonable for the panel to be unconvinced that Mr Teggart was using "TeleTech" as an abbreviation for telecommunications or technical, it had not considered whether or not the company had been brought into "serious" disrepute, which is the wording used in its disciplinary policy. The tribunal also expressed concerns that the company had failed to obtain evidence from Mr Spence, who had first alerted it to Mr Teggart's Facebook comments. There appears to have been a suspicion that he was a member of the company’s staff masquerading as an external complainant, or could have had a close connection with someone within the company. 

In relation to the harassment of A, the tribunal found that the disciplinary panel's conclusion that Mr Teggart had harassed A was reasonable. Mr Teggart's unwanted Facebook comments clearly violated A's dignity and were capable of creating a degrading and humiliating environment. The company had evidence that A was upset about these comments and did not want to come into work. The tribunal also found that harassment can be caused through comments made to others and not to the victim of the harassment. Mr Teggart's comments were sent to a number of other employees within the workplace and were known about on the day that they were placed on Mr Teggart's Facebook page. 

The industrial tribunal concluded that the company had not violated Mr Teggart's human rights. When he made the comments public on Facebook, he abandoned any right to have his comments treated as private and he could not seek to rely on his rights to respect for his private life (under art.8 of the European Convention on Human Rights). Further, the tribunal held that an individual's freedom to manifest his or her beliefs under art.9 does not extend to a comment about the promiscuity of another person. Article 9 is intended to refer to "a philosophy, set of values, principles, or mores" guiding an individual's conduct or behaviour. The right to freedom of expression, set out in art.10, brings with it the responsibility to exercise that right in a way that is necessary for the protection of the reputation and rights of others. It did not entitle Mr Teggart to make comments that damaged the reputation or infringed the rights of A. 

The tribunal dismissed Mr Teggart's claim for unfair dismissal. 

Case transcript of Teggart v TeleTech UK Ltd (Microsoft Word format, 922K) 

Additional resources

  • Whitham v Club 24 Ltd t/a Ventura ET/1810462/10 An increasing number of tribunal cases involve employees making work-related comments on Facebook. This case shows that derogatory comments will by no means always justify dismissal. 
  • Crisp v Apple Retail (UK) Ltd ET/1500258/11 In this case, one of the world’s most prominent consumer technology companies, Apple, used its policies and procedures to dismiss fairly an employee who had made several Facebook posts that it considered could damage its reputation. 
  • Gosden v Lifeline Project Ltd ET/2802731/09 This employment tribunal decision shows that an employee's "private" actions outside the workplace can easily spill over to become misconduct that justifies disciplinary action. 

Discrimination arising from disability: paramedic's theft of anesthetic gas not a consequence of depression

McGraw v London Ambulance Service NHS Trust ET/3301865/11

Date added: 19 April 2012

Equality Act 2010 | disability discrimination | discrimination arising from disability

This case is a useful early example, along with Williams v Ystrad Mynach College ET/1600019/11, of how employment tribunals are approaching the new concept of "discrimination arising from disability" under the Equality Act 2010. The claimant fell at the first hurdle by failing to demonstrate a link between his disability and his treatment by the employer. 

Practical tips

A good example of a potential claim under s.15 of the Equality Act 2010 is where an employee with mental health issues argues that disciplinary action against him or her for bad behaviour was discriminatory. 

However, the claimant in this situation would have to show that there was a sufficient connection between his or her actions and the disability, for example by presenting medical evidence that medication caused the behaviour that led to the disciplinary action. 

In any event, an employer will have a defence if it can demonstrate that the disciplinary action was a proportionate means of achieving a legitimate aim. 

For example, the employer could show that its legitimate aim was to deal with behaviour that it deemed unacceptable and that it used proportionate means by offering support and counselling where possible, and took disciplinary action when that became the only option. 

Mr McGraw was employed by London Ambulance Service NHS Trust as a paramedic. He declared in 2005 that he had been abusing Entonox. Entonox, which is used as an anesthetic, is carried in ambulances for use by patients and kept in secure locations on the NHS trust's sites. In 2005, Mr McGraw was given support and counselling for Entonox abuse. 

In October 2008, suspicions were raised that Mr McGraw's "erratic behaviour" meant that he was abusing Entonox again. Mr McGraw denied that this was the case and he was not disciplined. 

On 29 October 2010, Mr McGraw, whose attendance was poor and under review, was signed off sick with "depression anxiety". On 20 November 2010, while he was still on sick leave, Mr McGraw visited Richmond ambulance station at 2am. Mr Potter, the ambulance operations manager, knew that Mr McGraw was signed off sick and challenged him about what he was doing there. Mr Potter later reported that Mr McGraw appeared to be "heavily intoxicated" and was "visibly disoriented, unsteady on his feet and slurring his speech". 

During the formal investigation that followed, Mr Potter gave evidence that his suspicions had been aroused when he noticed that the fire exit was open, even though it was a cold night. Mr Potter said that Mr Ironmonger and Ms Coutts, the two members of staff who were at the station during Mr McGraw's impromptu visit, had appeared "sheepish" when asked what was going on. Mr Potter had then seen Mr McGraw, who looked unsteady on his feet, through a window. When Mr Potter went outside to challenge him, Mr McGraw had driven off in his car, forcing Mr Potter to jump away from the vehicle to avoid having his feet run over. 

Because they were Mr McGraw's colleagues, Mr Ironmonger and Ms Coutts were reluctant to put their version of events on record, but both said that they had seen him carrying a canister of Entonox. Mr Ironmonger said that there was a view among Richmond staff that "Entonox had been diminishing at a more rapid rate lately than [one] might expect". 

When Mr McGraw was interviewed, his recall of the night in question was "very patchy". He said that he had gone to the station to pick up his phone charger and laptop and could not recall holding a canister of Entonox. He claimed that his behaviour had been caused by his taking too much prescribed medication. 

It was not possible to track the movements of Entonox cylinders at the Richmond station because all on-duty crews are allowed to go to any station to exchange empty cylinders for full ones. Therefore, it could not be verified whether or not any Entonox was missing from the Richmond station. 

It was concluded at the disciplinary hearing on 12 April 2011 that Mr McGraw had:

  • gone to Richmond ambulance station on the night in question while signed off work sick;
  • attended the station with the intention of misappropriating Entonox;
  • abused Entonox while at the station in contravention of the trust's alcohol, drugs and solvent misuse policy; and
  • driven away from the station when challenged by Mr Potter. 

Mr McGraw was dismissed for gross misconduct, despite his 19 years' service and previous good disciplinary record. The trust took the decision, upheld on appeal, on the basis that:

  • it could not tolerate the misuse of substances meant for the treatment of patients;
  • he had made several "conscious decisions" that night;
  • he was a paramedic with easy access to drugs; and
  • he was required to provide a "remote and autonomous" service to the public. 

Mr McGraw's claims of unfair dismissal and direct disability discrimination were rejected by the employment tribunal. In addition, Mr McGraw claimed "discrimination arising from disability", a new concept that was introduced on 1 October 2010 by s.15 of the Equality Act 2010. This section makes it unlawful for an employer to treat an employee unfavourably because of something "arising in consequence of" his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability. An employer can successfully defend a claim if it can justify the unfavourable treatment on the basis that it was a proportionate means of achieving a legitimate aim. 

The employment tribunal recognised that, because there had not been any case law on discrimination arising from disability, it had to be guided by the Employment statutory code of practice (PDF format, 1.09MB) (on the EHRC website). 

The employment tribunal gave "considerable thought" to whether or not the trust's treatment of Mr McGraw was because of something "arising in consequence of" his disability. The tribunal asked whether or not his attempt to steal Entonox arose from his depression. In other words, was the attempted theft a result, effect or outcome of his depression? The tribunal could find no evidence of a link between the depression and attempted theft, or a link between the effects of any medication that Mr McGraw was taking and his dismissal. The evidence before the tribunal was that taking the prescribed medication was likely to cause Mr McGraw respiratory depression and make him sleepy, not make him prone to committing theft. 

The tribunal concluded that, even if it was wrong about this, it would have held that, in these circumstances, Mr McGraw's dismissal was a proportionate means of achieving a legitimate aim. 

Case transcript of McGraw v London Ambulance Service NHS Trust
(PDF format, 922K)

Additional resources

Discrimination arising from disability: lecturer forced to move to inferior contract wins Equality Act claim

Williams v Ystrad Mynach College ET/1600019/11

Date added: 19 April 2012

Equality Act 2010 | disability discrimination | discrimination arising from disability

This case is a useful early example, along with McGraw v London Ambulance Service NHS Trust ET/3301865/11, of how employment tribunals are approaching the new concept of "discrimination arising from disability" under the Equality Act 2010. This claimant succeeded in showing that his employer's requirement that he move to a new contract was unfavourable treatment that arose in consequence of his disability and the employer's actions were not justified. 

Practical tips

A good example of a potential claim under s.15 of the Equality Act 2010 is the dismissal of an employee as a result of a high level of absence caused by a disability. 

An employer in this situation will have a defence if it can demonstrate that the dismissal was a proportionate means of achieving a legitimate aim. 

To rely on this justification defence, the employer would have to show that it had a legitimate aim in mind at the time and should produce evidence (for example, up-to-date medical reports) to show that it did not rely on assumptions or generalisations about a health condition. 

Generally, a dismissal will be justified only if there is no other less discriminatory option open to the employer, for example redeployment or a reduction in working hours. 

Mr Williams is a lecturer specialising in mechanical services and plumbing. He was employed by Ystrad Mynach College. He has had a number of serious illnesses and it was acknowledged that he had a high sickness absence rate. The college had been supportive during his illnesses, referring him to occupational health and allowing him phased returns to work. 

In June 2007, Mr Williams was diagnosed with hydrocephalus, which is a rare condition that leads to the build-up of fluid inside the skull. In September 2007, he had an operation to insert a shunt, which is a form of catheter that enables excess fluid to be reabsorbed elsewhere in the body. 

In March 2010, Mr Williams began having terrible headaches. After a period in hospital, he was diagnosed with a haematoma on the brain as a result of complications with the insertion of the shunt. The college referred Mr Williams for an occupational health assessment, which took place in July 2010. Dr Thomas gave (somewhat contradictory, the tribunal later acknowledged) advice that Mr Williams was "certainly not fit to return to work as a full-time lecturer with [the] organisation" (suggesting that some part-time work might have been possible), but also that he was "certainly not fit to return to work in any capacity at present". 

In August 2010, Dr Carne (Mr Williams' GP) issued him with a fit note stating that he would not be fit for work for 13 weeks. However, Dr Carne followed this up with a letter a week later stating that a CT scan had shown a significant reduction in swelling and Mr Williams "could now be considered fit for part-time work or possibly half his original workload". 

The college commenced its capability procedure in early September 2010. Mr Williams was invited to a capability hearing, which took place at the end of September 2010. The college's capability procedure provided that:

  • a first capability meeting could result only in a "written warning", followed by a period of between one and three months of monitoring for signs of improvement;
  • a second capability meeting could consider voluntary redeployment where there were no signs of improvement; and
  • a "dismissal interview" could take place only in circumstances where "no offer of voluntary redeployment [was] made or one [was] not accepted". 

Mr Williams' first (and, as it turned out, only) capability meeting was chaired by Mr Davies, the college principal, and Mr Jarvis, the vice-principal of human resources and governance. Although Mr Jarvis did not take notes of the meeting, Mr Williams did, meaning that the tribunal preferred his evidence where there was any factual dispute about what was said. 

At the meeting, Mr Williams pointed out the recent improvement in his health described in the letter from Dr Carne. He also made it clear that he was willing to work reduced hours (with his pay reduced accordingly), to give him more time to rest between periods of work. Mr Davies suggested that Mr Williams would be better off taking ill-health retirement and, if he did not retire, he should move from a permanent contract on to an "F4 contract". This is a short-term contract for academic staff that the college can terminate at any time on two weeks' notice. An academic on an F4 contract is given a set number of hours per week at an agreed hourly rate. The college is under no obligation to provide a minimum number of hours. There was no discussion with Mr Williams about what this contractual change would mean for him, but Mr Williams was aware of the nature of the F4 contract, and said that he did not want to move to this type of contract. 

The outcome of the capability meeting was that Mr Williams was informed that, with effect from 1 January 2011, he would be moved to the F4 contract. Mr Davies informed Mr Williams in writing that the reason for this was that it would reduce the "stress" on him and he would be able to avoid "higher-level thought functioning" because academics on the F4 contract concentrate on working on practical issues in the workshop and avoid complex academic work. The tribunal noted that Mr Davies seems to have formed the view from internet research that Mr Williams' condition meant that his intelligence would be impaired. Although the medical evidence had suggested that Mr Williams' memory, concentration, balance and energy might be affected, there was nothing in the medical opinion that suggested that his intelligence would be impaired. 

Mr Williams appealed against the decision to move him to the F4 contract, which he treated as a dismissal (although the college did not appear to realise at the time that the removal of Mr Williams from his permanent contract was, in effect, a dismissal). The appeal panel of three governors was chaired by Mrs Lippard, with Mr Jarvis also in attendance. 

Mrs Lippard gave evidence to the tribunal that, although Mr Jarvis had briefed her on the appeal, she had not spoken to Mr Davies (who had ultimately made the decision) about the reasons for moving Mr Williams to a different contract. She told the tribunal that she did not question Mr Davies because "he was the sort of person whose judgment she valued". Mrs Lippard did not seek any further medical evidence about Mr Williams' prognosis, despite the inconsistent medical opinion. Mr Williams' appeal was ultimately rejected. 

In her evidence to the tribunal, Mrs Lippard said that it was her opinion that it was "odds-on" that Mr Williams would become sick again. She based this on having "learnt quite a bit" while working in an administrative role for a GP. The tribunal noted that she had no clinical qualifications. One of the tribunal lay members, who had over 30 years' experience as a nurse, stated that she had rarely come across hydrocephalus and, even with her professional background, would not have ventured an opinion about the condition's effect on an individual. 

Mr Williams, who continued to work for the college under the F4 contract and whose health remained stable, claimed disability discrimination and unfair dismissal. In his disability discrimination claim, he argued that the college had failed to make reasonable adjustments and he had suffered "discrimination arising from disability" under s.15 of the Equality Act 2010. This section makes it unlawful for an employer to treat an employee unfavourably because of something "arising in consequence of" his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability. An employer can successfully defend a claim if it can justify the unfavourable treatment on the basis that it was a proportionate means of achieving a legitimate aim. 

The employment tribunal noted that, for a claim under s.15 of the Equality Act 2010, the unfavourable treatment does not need to be "because of" a person's disability, but must "arise in consequence of" the disability. According to the Employment statutory code of practice (PDF format, 1.09MB) (on the EHRC website), there must be "a connection between whatever led to the unfavourable treatment and the disability". There is no need for a comparator. 

The tribunal described the test for whether or not the employer has a defence as one of objective justification. The employer's treatment of the claimant must have been "proportionate means of achieving a legitimate aim". This is stricter than the test for disability-related discrimination under the Disability Discrimination Act 1995, which "discrimination arising from disability" has replaced. In relation to disability-related discrimination, the reason for the treatment had to be "material to the circumstances of the particular case and substantial", which is akin to a "range of reasonable responses" test. 

Applying these principles to this case, the tribunal had no doubt that replacing Mr Williams' permanent contract with the inferior F4 contract was "unfavourable treatment". The college acknowledged that its actions arose in consequence of Mr Williams' disability. The sole issue for the tribunal to consider was whether or not the college's actions were capable of objective justification. 

The tribunal accepted that the college's stated aim of providing a service to its students while keeping Mr Williams in its employment was capable of amounting to a legitimate aim, if that was indeed in the minds of the decision-makers at the time that they terminated his permanent contract. However, the tribunal believed that Mr Davies simply considered that Mr Williams was no longer capable of doing the job and the new arrangement would minimise the disruption caused by his future absences. It was not open to the college to rely on an objective justification retrospectively that had not been considered at the time. Mr Williams' claim for discrimination arising from disability therefore succeeded. 

The tribunal concluded that, even if it had accepted that this aim had been in the minds of the decision-makers at the time, the college had gone about implementing its aim in a disproportionate manner. The tribunal took into account:

  • the college's ignorance of the effect of its actions (ie that, in ending Mr Williams' permanent contract, it was, in effect, dismissing him);
  • the failure to get up-to-date medical advice when Mr Williams' medical condition changed (or to clarify inconsistencies in the medical opinion);
  • the breaches of the college's capability procedure;
  • the decision-makers' "improper assumptions" about Mr Williams' medical condition, based on brief internet research or previous clerical experience in the health sector;
  • the lack of consultation with Mr Williams about the effect of changing his contract; and
  • the failure to provide Mr Williams with an impartial appeal hearing. 

Ultimately, the tribunal decided that the unfavourable treatment was incapable of objective justification because there was an obviously less discriminatory means of achieving the legitimate aim. The college could have retained Mr Williams on a permanent contract, but on reduced hours, which was the very adjustment that he sought. 

Mr Williams also won his claim for unfair dismissal and the college was found to have failed in its duty to make reasonable adjustments. 

Case transcript of Williams v Ystrad Mynach College
(PDF format, 1.39MB)

Additional resources