Clarke v The Co-operative Group Ltd

Factual and Procedural Background

The Plaintiff, employed by the Defendant since 1994 at a retail outlet in The City, transferred to a night shift role in August 2003. Diagnosed with depression in January 2006, the Plaintiff had intermittent absences and medical advice not to return to night shifts. The Plaintiff raised a grievance in September 2008 alleging disability discrimination related to pay and job adjustments. The Defendant offered a temporary supervisor role during a colleague’s maternity leave and later a permanent supervisor position at a negotiated pay rate. The Plaintiff claimed the Defendant failed to make reasonable adjustments under the Disability Discrimination Act 1995 (as amended) from September to November 2008, specifically alleging entitlement to a higher pay rate for a supervisor post earlier than offered. The tribunal heard evidence from both parties, including management and Human Resources representatives, and reviewed documentary evidence. The claim was presented to the Tribunal Office in November 2008, and the hearing took place in June 2009.

Legal Issues Presented

1. Did the Defendant discriminate against the Plaintiff by failing to comply with the duty to make reasonable adjustments under the Disability Discrimination Act 1995 (as amended)?

Arguments of the Parties

Appellant's Arguments

• The Plaintiff’s representative defined the relevant provision, criterion or practice as the requirement to work night shifts to receive the higher pay rate of £7.40 per hour.
• It was contended that this arrangement placed the Plaintiff at a substantial disadvantage compared to non-disabled persons, particularly regarding pay and job responsibilities.
• The Plaintiff argued that better consideration should have been given to his experience and qualifications in September 2008, including an earlier offer of a supervisor role at the higher pay rate.

Appellee's Arguments

• The Defendant denied all claims of discrimination and argued no breach of the duty to make reasonable adjustments occurred.
• The Defendant maintained there were no suitable vacancies during the relevant period and that the Plaintiff was treated sympathetically, ultimately offering a permanent supervisor role at the Plaintiff’s requested pay rate.
• It was asserted that the pay rates offered were consistent with the Defendant’s established salary bands and recruitment practices.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
O'Hanlon v Commissioners for HM Revenue and Customs (2007) EWCA Civ 283	Definition and scope of the duty to make reasonable adjustments under the Disability Discrimination Act.	The tribunal relied on Lord Justice Hooper’s summary to clarify when the duty arises and the nature of reasonable adjustments.
Smyth v Churchill Stairlifts plc [2005] EWCA Civ 1220	Importance of correctly identifying the provision, criterion or practice causing substantial disadvantage.	Guided the tribunal’s approach to defining the relevant provision and comparator group.
Environment Agency v Rowan (2008) IRLR 20	Process for assessing failure to make reasonable adjustments claims, including identification of provision, comparators, and substantial disadvantage.	The tribunal applied the four-step identification process outlined to assess the Plaintiff’s claim.
Qureshi v Victoria University of Manchester (2001) ICR 863	Principles concerning reasonable adjustments and redeployment of disabled employees.	Considered in the context of the Plaintiff’s return to work and offer of alternative roles.
Igen & Others v Wong [2005] IRLR 258	Burden of proof in discrimination cases, including failure to make reasonable adjustments.	Informed the tribunal’s approach to burden of proof shifting between parties.
Project Management Institute v Latif [2007] IRLR 579	Clarification that claimants must prove duty arose and breach before burden shifts to respondent.	Supported the tribunal’s conclusion that the Plaintiff did not prove breach of duty.
Anya v University of Oxford and Another (2001) IRLR 377 CA	Approval of principles relating to reasonable adjustments and redeployment.	Referenced in assessing the Defendant’s offer of a permanent supervisor role.

Court's Reasoning and Analysis

The tribunal identified the relevant provision, criterion or practice as the requirement to work night shifts to receive the higher pay rate. It accepted that this placed the Plaintiff at a substantial disadvantage compared to non-disabled persons. The tribunal acknowledged the Plaintiff had demonstrated facts from which a duty to make reasonable adjustments could be inferred. However, the Plaintiff failed to prove that the Defendant breached this duty. The tribunal considered the Defendant’s evidence that no suitable vacancies existed from September to November 2008 and that the Defendant had acted reasonably by offering a temporary supervisor role during maternity cover and subsequently a permanent supervisor role at the Plaintiff’s requested pay rate of £7.40 per hour. The tribunal found the Defendant’s pay offers consistent with internal salary structures and recruitment practices. It noted the absence of any guarantee of a supervisor post prior to the maternity cover opportunity. The tribunal applied relevant legal principles, including the burden of proof framework and guidance on reasonable adjustments, and concluded that the Defendant did not discriminate against the Plaintiff by failing to make reasonable adjustments.

Holding and Implications

The tribunal’s unanimous decision was to DISMISS the Plaintiff’s claim of disability discrimination for failure to make reasonable adjustments.

The direct effect is that the Plaintiff’s claim was not upheld and no compensation or remedy was awarded. The tribunal’s decision does not establish new precedent but applies established principles concerning the duty to make reasonable adjustments and the evidential burden in disability discrimination claims.