We’ve all heard and used the words equality and diversity before but what do they actually mean and how do they affect you as an employer or employee?
Complying with the Equality Act 2010 is something that all employers must do. Failure to do so can result in the offending companies being taken to court.
One such example was Halfords Autocentres Ltd who have been ordered to pay £25K to a disabled worker for repeated failures to make promised adjustments.
A tribunal in Bury St Edmunds ruled that the motoring retailer discriminated against MOT tester Paul Withers on the basis of his disability.
The judging panel concluded that in the last 12 months of his employment, Paul ‘was continuously in the invidious position of being offered ‘jam tomorrow’ in that he was repeatedly assured that the reasonable adjustments would be put into place but repeatedly left disappointed’.
The tribunal was told that Paul began working at Halfords Autocentre in Milton Keynes in October 2019. He disclosed his condition during his interview and explained that he struggled with some tasks, such as changing tyres.
The first four months of Paul’s employment went well, but in February 2020 his hip became inflamed and his ankle bones rubbed, which made weight-bearing painful. He took a number of days off sick and later used a crutch to ease the pain.
In August 2020, Paul attended hospital and was referred for an MRI scan and physiotherapy. In December 2020, he suffered acid reflux as a side effect of his pain medication, and later in the month was admitted to hospital due to a muscle spasm in his back. Despite several periods of sickness absence during 2020, Paul had only one return-to-work interview, even though company policy was to conduct such an interview after every absence.
On 12 November 2020, Stuart Benton conducted a first risk assessment after he became aware that Paul was using a crutch. ‘At this point,’ the tribunal found, ‘The only adjustments that had been implemented to mitigate the claimant’s disability were improvised and at best sporadically employed.’ For example, in order to limit his time standing, which caused him pain, Withers had borrowed a stool from the tearoom to use at his MOT desk.
As well as stipulating that Paul should have a more suitable chair – which he didn’t receive for another six months – the risk assessment set out various measures to reduce his need to walk and to allow him enough time to take breaks and manage his workload comfortably. These measures included blocking out slots at lunchtime and at the end of the day, and having a colleague bring car keys to him to save him walking to reception. However, the tribunal found that these measures ‘were aspirational but not in fact actually taking place’.
In January 2021, Paul was issued with a ‘record of improvement’ which stated that he needed to make “a concerted effort” to ensure his attendance was ‘100% going forward’. In May 2021, a second risk assessment was carried out, during which Paul reported that he was struggling to carry out MOTs on low-slung sports cars and also Class 7 commercial vehicles because of the need to climb up into the cab. The assessment noted Paul’s willingness to carry out technician work while colleagues tested these vehicles – which accounted for only 10%-20% of his weekly workload – but elsewhere in the document Benton wrote that Withers’ ‘inability to carry out tests on certain vehicles could become detrimental to the business’.
In June 2021, Paul was interviewed by Benton about his alleged failure to identify a missing wheel bolt during an MOT test. He was invited to a disciplinary hearing into alleged gross misconduct on 14 July. Asked about his health, Paul said the failure to implement measures set out in the risk assessments led to him experiencing pain. Following the hearing, he received a final written warning.
On or around 3 August, Paul informed Halfords’ employee relations officer that he had contacted Acas because he felt the failure to implement the risk assessments amounted to discrimination. The next day a third risk assessment was conducted.
On 5 August, Paul submitted a grievance relating to the attendance warning, the failure to implement risk assessments, and the disciplinary procedure. In September, he was informed the grievance was dismissed on all three points, a decision which he appealed. After a hearing on 5 October, the company reversed its decision on point 2, conceding that it had not properly implemented the risk assessment measures.
On 4 November, Paul resigned from his position. The tribunal heard that he had secured another job elsewhere.
After a period of conciliation by Acas, Paul brought a claim against Halfords on the basis that the way the company ‘dealt with his sickness absence, and in particular his perception that it was being treated as a disciplinary matter, coupled with their repeated failures to implement the reasonable adjustments that they had identified in the course of the risk assessments, was the beginning of a course of discriminatory conduct towards him by the Respondent which culminated in his constructive dismissal on disability grounds on 25 November 2021′.
Defending the claim, Halfords argued it was ‘a supportive and considerate employer that correctly followed its own procedures in relation to absence and disciplinary matters; identified reasonable adjustments to support the claimant of its own volition and applied them as far as was practicable; and that any perception of discrimination on the part of the claimant was founded on misconceptions held by him.’
Following a hearing in May 2023, the tribunal panel rejected Paul’s claims of harassment, victimisation and discriminatory dismissal, but found that his claims for discrimination arising from disability and failure to make reasonable adjustments were both well founded and therefore succeeded.
In August 2023, Judge Conley awarded Paul £24,199.45 for Halfords’ failure to make reasonable adjustments and the injury to feelings he suffered as a result of his treatment. In determining the level of the award, Judge Conley noted that Paul was made to feel ‘insecure and anxious’ about his sickness absences. He said Paul was ‘under pressure to work at the same rate and in the same conditions’ as colleagues who did not have his disability, while management was ‘complacent in its approach’ to making the required reasonable adjustments.
Recommending that Halfords review its equality, diversity and inclusion training – for managers and not just new starters – Judge Conley said the panel had been ‘concerned about the complacency that appeared to exist among management in relation to the issues at the heart of this case, and the fact that many of the attitudes that led to the discriminatory acts here sadly appeared to us to still persist at the time of the hearing’.
Is it time you looked at equality, diversity and inclusion training for your staff?
Well here at The Wilkins Safety Group we have the course you need! This course is online, takes about 70 minutes to complete.
The Wilkins Safety Group has partnered with Switch2Zero and have arranged to plant a tree with each online course that is sold.
So, you can be doing your bit to save the planet whilst meeting your legal obligations to train your staff.