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L v Q (England and Wales : Disability Discrimination)
Factual and Procedural Background
The Plaintiff commenced employment with the Defendant on 4 December 2015 as Job Title A within the Treasury Back Office team, reporting to Line Manager AA. The Plaintiff has recognized disabilities of Autistic Spectrum Disorder (Asperger’s) and Tourette’s syndrome, which affect his ability to perform work tasks and cause stress that exacerbates these conditions.
During recruitment, the Plaintiff disclosed Tourette’s to the Defendant’s occupational health provider, OH Assist, but the Defendant was initially provided only limited information. The Plaintiff was formally diagnosed with Asperger’s in January 2018, though the Defendant became aware or should have become aware of this condition by September 2016.
The Plaintiff experienced difficulties with inadequate handover and training, insufficient workload structure, and lack of team integration. He raised concerns and grievances regarding delays in recruitment, management style, workload, and failure to make reasonable adjustments for his disabilities.
From May 2016, the Defendant was made aware of the Plaintiff’s disabilities and needs through occupational health reports and direct communication. Despite some adjustments, the Defendant failed to provide a reduced workload, a buddy system for team integration, a suitable desk location, and clear task planning in a timely and effective manner.
In late 2016 and early 2017, the Defendant initiated a departmental reorganisation which resulted in the Plaintiff’s role being made redundant. The Plaintiff was placed at risk of redundancy and offered voluntary severance under circumstances the tribunal found to be discriminatory.
The Plaintiff brought claims before the Employment Tribunal alleging disability discrimination, failure to make reasonable adjustments, harassment, victimisation, and indirect discrimination related to pre-employment health screening.
The Tribunal conducted a hearing in private between 23 April and 9 May 2018, with counsel representing both parties. The judgment was anonymised and not placed on the public register to protect the Plaintiff’s rights.
Legal Issues Presented
- Whether the Defendant delayed the Plaintiff’s start date in a manner amounting to direct or indirect disability discrimination.
- Whether placing the Plaintiff at risk of redundancy constituted discrimination arising from disability under section 15 of the Equality Act 2010.
- Whether the Defendant failed to make reasonable adjustments to accommodate the Plaintiff’s disabilities, including but not limited to reduced workload, task planning, desk relocation, and provision of a buddy.
- Whether the Defendant engaged in harassment related to the Plaintiff’s disabilities.
- Whether the Defendant’s pre-employment health screening process constituted indirect discrimination.
- Whether the Plaintiff was victimised by being placed at risk of redundancy following protected acts such as grievance raising.
- Whether the Defendant had knowledge or ought reasonably to have had knowledge of the Plaintiff’s disabilities at relevant times.
- Whether the Defendant’s conduct was a proportionate means of achieving a legitimate aim.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336 (EAT) | Clarification on the threshold for harassment claims under s26 EqA 2010, emphasizing reasonableness in the claimant’s perception of conduct. | The tribunal applied this precedent to assess whether the conduct alleged by the Plaintiff amounted to harassment, concluding some conduct was unwanted but not related to disability or unreasonable in effect. |
| Archibald v Fife Council [2004] IRLR 652 (HL) | Duty to make reasonable adjustments may require positive discrimination to remove disadvantage caused by disability. | The tribunal relied on this authority to support the principle that the Defendant was required to make reasonable adjustments including workload reduction and task structuring to accommodate the Plaintiff’s disabilities. |
| Gallop v Newport City Council [2013] EWCA Civ 1653 | Employers must make independent factual judgments on disability and not uncritically accept occupational health opinions. | The tribunal used this to emphasize that the Defendant could not rely solely on OH reports but had to proactively understand the Plaintiff’s disabilities and needs. |
| Donelien v Liberata (UK) Ltd [2018] EWCA Civ 129 | Employers may rely on occupational health opinions but must do so critically and in context. | The tribunal considered this when evaluating the Defendant’s knowledge and response to the Plaintiff’s disabilities. |
| LB Hammersmith & Fulham v Farnsworth [2000] IRLR 691 (EAT) | Knowledge of occupational health advisors may be imputed to employers when they act as agents in employment decisions. | The tribunal distinguished this case but found that in the present case the Defendant was fixed with OH Assist’s knowledge because the information was expected to be passed on. |
| Hartmann v South Essex Mental Health and Community Care NHS Trust [2005] IRLR 293 (CA) | Confidential medical information disclosed to OH may not be imputed to employer if expressly confidential. | The tribunal found this case distinguishable because the OH provider here was engaged to assess fitness for work and to advise the employer. |
| Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10; Redcar and Cleveland Primary Care Trust v Lonsdale UKEAT/0090/12 | Reasonable adjustments need not guarantee removal of disadvantage, only a prospect of removal. | The tribunal applied this principle in assessing the Defendant’s duty regarding adjustments. |
Court's Reasoning and Analysis
The tribunal carefully applied the Equality Act 2010 provisions on disability discrimination, discrimination arising from disability, harassment, indirect discrimination, and reasonable adjustments to the facts.
It found that the Defendant knew or ought reasonably to have known of the Plaintiff’s disabilities (Tourette’s from recruitment and Asperger’s by September 2016) and the substantial disadvantages the Plaintiff faced in carrying out his role, including stress and difficulties with task management and social integration.
The tribunal concluded that the Defendant failed to make reasonable adjustments in several respects: notably, the failure to provide a reduced workload from the outset, failure to break work into manageable chunks, failure to provide a weekly task plan, failure to move the Plaintiff’s desk promptly to a less disruptive location, and delay in implementing a buddy system to aid team integration.
It found that placing the Plaintiff at risk of redundancy was discrimination arising from disability under section 15 EqA 2010, as the reason for the risk was the Plaintiff’s need for extensive management support and his difficulty performing all parts of his role, both consequences of his disabilities. The Defendant did not justify this as a proportionate means of achieving a legitimate aim.
The tribunal rejected claims of direct discrimination in the redundancy context and found that the delay in the Plaintiff’s start date and the pre-employment health screening process were not discriminatory, being proportionate and legitimate.
Harassment claims related to disciplinary discussions and certain remarks were not upheld as related to disability or unreasonable in effect. The tribunal found that some conduct was unwanted but did not have the purpose or effect of violating dignity or creating a hostile environment.
The tribunal held that the Defendant did not victimise the Plaintiff by placing him at risk of redundancy following protected grievances.
Time limits for bringing claims were considered, with earlier failures to make adjustments found to be part of a continuing act of discrimination, thus in time.
The tribunal emphasized the Defendant’s failure to proactively engage with the Plaintiff about his disabilities and needs, and the suboptimal management style that contributed to the situation escalating.
Regarding occupational health evidence, the tribunal found the Defendant was fixed with the knowledge of OH Assist given the role of OH Assist in assessing fitness for work and providing recommendations, unlike cases where OH information is confidential solely to OH.
Holding and Implications
The tribunal upheld the claims of discrimination arising from disability, specifically that placing the Plaintiff at risk of redundancy was discriminatory under section 15 of the Equality Act 2010.
The tribunal found multiple failures to make reasonable adjustments including failure to reduce workload, failure to provide a buddy, failure to move the Plaintiff’s desk timely, failure to provide weekly task plans, and failure to break work into manageable chunks.
The claims of direct discrimination related to start date delay and pre-employment screening, as well as harassment claims, were not upheld.
The claim of victimisation by placing the Plaintiff at risk of redundancy was not upheld.
The tribunal ordered a separate remedy hearing to consider compensation and possible recommendations.
The decision directly affects the parties by confirming liability for discrimination arising from disability and failure to make reasonable adjustments, but does not establish new legal precedent beyond the application of established Equality Act principles to the facts.
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