Half-baked assessment of disability leads to rising dough.

28th June 2024

By Lauren Ogden, Associate

A visually impaired employee is seeking £112,000 in compensation after the tribunal found his employer had dismissed him because of his disability and failed to make reasonable adjustments.

Stanley v The Village Bakery 2024 – The Facts

Mr Stanley was registered blind following a diagnosis of Bardet Biedl Syndrome in 2010. He has some vision but it is severely limited.

For the first three weeks of his employment as night shift production operative with The Village Bakery, Mr Stanley was allocated a buddy to work alongside and learn the role. Once he started to work independently without his buddy, it took him longer to complete tasks and he was struggling to keep up with production. No issues with his performance were discussed with him.

On 22 August 2023, just six weeks after his employment had started, Mr Stanley was called into a probationary review meeting and his employment was terminated. The employer said that he hadn’t reached the standard required and that there had been “near misses” of Mr Stanley bumping into machinery. At no time did his manager discuss his sight impairment or the difficulties he was facing. Mr Stanley did not appeal the dismissal.

Mr Stanley brought claims for failure to make reasonable adjustments and discrimination arising from disability.

The employer accepted that Mr Stanley was disabled and that they knew about his disability.

Failure to make reasonable adjustments

Under the Equality Act, an employer has a duty to make reasonable adjustments where they apply a “provision, criterion or practice” (“PCP”) that puts a disabled person at a substantial disadvantage in comparison to those who are not disabled. The employer must then take all reasonable steps to avoid that disadvantage to the employee.

The tribunal decided in this case that the bakery operated the following provision, criterion or practices:

  • Requiring production operatives to undertake production to a required efficiency in terms of speed and accuracy and that this included duties of checking the temperature of bread and manoeuvring trolleys.
  • Imposing probationary periods on new employees and that if employees did not reach the required standard of efficiency in terms of speed and/or accuracy, their employment would be terminated.

The tribunal also decided that these PCP’s placed Mr Stanley at a substantial disadvantage compared to a non-disabled employee within their probationary period because he needed more time to learn the layout of the factory, he had to process more information than those with full sight, had to work harder to compensate for his sight impairment and he was unable to see small print without taking extra time to concentrate his vision.

This was enough to show that the bakery was under a duty to make reasonable adjustments for Mr Stanley and so the tribunal had to decide what adjustments could have been made and whether these would have eliminated or reduced the disadvantage Mr Stanley faced or if it would not have been a reasonable adjustment for the bakery to make.

The tribunal decided that the bakery should have made the following adjustments and that these would not have been unreasonable:

  • Allowing Mr Stanley more time to familiarise himself with the processes, the people and the factory environment before deciding to dismiss him. The tribunal recommended that he should have been given at least his full three-month probationary period to reach the standards required by the bakery. It was relevant that Mr Stanley had previously worked in another factory for 18 years with no issues as he was familiar with the role.
  • Provide proper support in learning the new role and giving him a designated support worker to assist Mr Stanley. The tribunal dismissed the employer’s argument that this would not have been cost effective and decided that the bakery should have made enquiries with Access to Work or the RNIB to see if funding was available for the role.
  • Risk assessments should have been carried out and steps taken to address any safety risks with Mr Stanley.
  • Providing Mr Stanley with a high-viz jacket and telling other members of staff about his disability so that they would know to help him where needed.

Mr Stanley was successful in this claim.

Discrimination arising from disability

Discrimination arising from disability is where the employer treats the employee unfavourably because of something arising from the employee’s disability and the employer cannot justify that treatment.

In this case the tribunal decided that Mr Stanley had suffered unfavourable treatment by the bakery when they decided to terminate his employment six weeks into his probationary period. The “something arising from his disability” was Mr Stanley’s inability to reach the standard required by the bakery which resulted in his dismissal.

The bakery tried to justify the unfavourable treatment by relying on the following legitimate aims:

  • Efficient production to meet customer demand. The tribunal accepted that the bakery considered this when dismissing Mr Stanley.
  • Saving costs (waste and/or damage to machinery and equipment). This was rejected as the bakery could not show how much cost had been caused by Mr Stanley and that this was greater than any other employee during probation.
  • Health and safety and wellbeing of Mr Stanley and the other staff. This was rejected as the bakery had let Mr Stanley work for six weeks without a health and safety assessment.

The tribunal rejected the bakeries argument that dismissing Mr Stanley was proportionate for ensuring that they had efficient production to meet customer demand. The bakery had failed to make reasonable adjustments for Mr Stanley to continue in the role and so the dismissal could not be justified.

Mr Stanley was also successful in this claim.

The case has been scheduled for a separate hearing to decide how much compensation Mr Stanley should be awarded. He is claiming £112,000 so the award could be significant.

 

What can employers learn from this case?

Employers may think that it is a straightforward process to dismiss an employee because their disability means they cannot carry out the role they are employed to do. This case shows that it is not that simple and the tribunal will expect employers to have first considered what reasonable adjustments can be made and give time for those adjustments to work before making any decision to dismiss an employee.

This case is also an interesting look at how tribunal’s consider what adjustments are reasonable. Employers often try to argue that some adjustments are unreasonable because of the additional cost to the business. This case shows that employers will be expected to see if funding is available through other organisations/charities and will also need to have evidence to show that they cannot afford the adjustments. The tribunal will consider the size and resources of the business.

There is no minimum length of service required to bring a claim for disability discrimination and so it did not matter that Mr Stanley was in his probation period. Employers should always be mindful of whether an employee has a physical or mental condition that could meet the test for being a disability under the Equality Act. If they are in doubt as to whether an employee might be disabled, then careful steps should be taken to consider what adjustments can be made before dismissing an employee for failing their probationary period.

Referrals to occupational health providers are a useful way to consider whether an employee might be disabled and provide suggestions for what adjustments might be made.

Employers should also ensure that health and safety risk assessments are in place and have been discussed with the employee. This includes stress risk assessments which are required for any business that employs more than five people.

If you have any questions about this article or the assistance the Kuits employment team can offer, please contact Lauren Ogden at Lauren.Ogden@kuits.com or on 0161 912 6150.

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