Acts of discrimination by an employer likely to constitute a fundamental breach of contract justifying an employee’s resignation
In the case of Wainwright v Cennox plc [2023] EAT... Read More
Failure to increase contractual hours amounted to disability discrimination
A recent Employment Appeal Tribunal (“EAT”) decision involving Ladbrokes Betting acts as a reminder to businesses and employers of the potential consequences of not considering the impact of, sometimes seemingly innocuous, decisions particularly where disability is a factor.
Here, Ladbrokes’ failure to increase an employee’s contractual hours of work due to her inflexibility (actual or perceived), when another colleague’s hours had been increased, amounted to disability discrimination and constructive dismissal.
Facts
The facts of the case where that Ms Omi (“the Claimant”) worked for Ladbrokes from 2016 until her resignation in 2022. She was originally contracted to work 30 hours per week. The Claimant has Conns Syndrome (an accepted disability). In December 2021, she commenced a period of sick leave, and her fit note suggested that on her return to work she should work afternoon or evening shifts, avoiding early shift patterns.
Consequently, and shortly after commencing sick leave, her contractual hours were reduced to 17 hours per week. The Claimant returned to work in January 2022 and raised a complaint in February 2022 that she did not agree to the reduction in her contracted hours and that overtime was not available to her when it was available to others.
The Claimant then went on a second period of sick leave with depression in August 2022 after she had learned in July that another employee, Tejas, who was contracted to work 20 hours per week had had their hours increased to 30 hours per week in June 2022, at the same time the Claimant had been seeking an increase to her hours.
The Claimant resigned in November 2022 and brought several claims including for direct disability discrimination.
The law
Direct discrimination takes place where “because of a protected characteristic” a person treats another person less favourably than that person “treats or would treat others” (section 13 Equality Act 2010 (“EqA”)). Thus, a comparator is required to make out a case of direct discrimination.
Section 23 of EqA 2010 dictates that “there must be no material difference between the circumstances” between the person alleging discrimination and the comparator. However, this is not the same as saying that an employee has to have an “actual comparator”. They can rely on evidential comparators, such as a colleague who has material differences to the employee but whose circumstances are sufficiently similar, or they can rely on a hypothetical comparator.
Decision
The Employment Tribunal found that the failure to allow the Claimant to increase her contractual hours, compared to Tejas, was an act of direct discrimination which resulted in her constructive unfair dismissal. Ladbrokes argued the difference in treatment was because of the need for flexibility (not because she was disabled per se), something the Claimant could not provide. However, the Employment Tribunal did not accept this as it was not clear why the general practice of offering additional hours was not given to the Claimant when it was given to others and found that “the claimant’s lack of flexibility was effectively a proxy for [her] disability, as she was unable to work flexibly because she is disabled.”
The EAT rejected the Ladbrokes’ appeal. It held that the ET was entitled to conclude that Tejas was an actual comparator on the basis that both Tejas and the Claimant wanted an increase to 30 hours per week and that shifts were available. It held that any other differences were immaterial including the Claimant’s desire to not work early shifts in comparison to Tejas – evidence showed that Tejas had secured overtime on afternoons and evenings when, in line with the medical advice, the Claimant was not restricted from working but those shifts had not been offered to her.
Comment
A key factor in this case was that Ladbrokes sought to argue that it did not increase the Claimant’s hours because of a “flexibility” requirement, in an effort to distance the decision from being affected by her disability. The EAT warned that the operation of such a requirement can have unintended consequences, including discrimination, as it did here. It is therefore important for employers to have in mind that when they operate a discretion (here, who to offer overtime to), they do need to consider why they have made a decision one way or another and whether the exercise of this discretion could have a discriminatory consequence, intended or not.
Although a slightly peripheral point in this case, it reiterates that where an employee’s fit note suggests adjustments are made, an employer should look to consult with the employee about any changes to their terms and, in particular, the duration of this change rather than imposing them unilaterally. This not only increases the prospects of a successful reintegration to the workplace but limits the risk that the employee feels they are being discriminated against due to sickness which could be linked to a disability.