Veitch Penny LLP - Exeter | Crediton, Devon

Case

Adams v Colchester & East Sussex Co-operative Society Ltd - Employment Tribunal (18/8/02)

Issues

(1) Unfair Dismissal
(2) Disability discrimination
(3) Failure to make adjustments

Facts

The Applicant worked as a Cash Office Supervisor earning a gross wage of £12,500. She worked for the Respondent from October 1994 until her dismissal on 30 November 2001.

Earlier in the year, she had indicated to her employer that she was suffering from a bad back, which had been exacerbated because she had to move large bags of coins into the safe and till boxes of cash from her office to the check out. These were duties normally undertaken by the Check Out Manager. The Manager indicated that they would arrange for someone else to assist, however, this help was only available on two occasions and only after the Applicant had "chased" for it. In the end, the Applicant resorted to using a shopping trolley.

A medical report was then obtained by the Respondent, which confirmed that the Applicant's work was aggravating her condition. At a meeting in November 2001, it was felt that the best solution was to find the Applicant alternative work. The Applicant was interviewed for the post of invoice clerk, but she did not want the job it would have involved a cut in pay of more than 20%. The Respondent continued to look for vacancies for her.

A further meeting was held on 30 November 2001, in which the Applicant was dismissed, on the grounds of capability, without any prior warning. The Applicant was informed that she would not be expected to work out her Notice, and would be given salary in lieu. The Respondent stated that they would send her details of any vacancies that should become available.

The Applicant was too shocked to appeal the decision for her dismissal, and the decision to end the Respondent's alternative job search and support enabling her to continue in her position. Her job title did not indicate that significant manual labour would be required. At the time of her employment, a Check Out Supervisor had also been employed who was responsible to the Applicant for dealing with check out problems as they arose. The supervisor left in 1999, and was not replaced. Three other "General Assistant" members of staff were required to undertake those duties.

The Applicant then made a complaint to the Tribunal, of unfair dismissal and disability discrimination.

Decision

The Applicant's claims for unfair dismissal and disability discrimination were upheld.
The Tribunal held that the specific duties aggravating the Applicant's condition were not the principal element of her duties as an Office Section Head/Supervisor. The Respondent would only have had to make minor adjustments to allow the Applicant to continue in her work, e.g. by allowing one of the General Managers to assist her.

It was noted that the Applicant, during her service with the company, had been promoted on three separate occasions and had an unblemished record. It was unreasonable to dismiss her on the basis that she had not been willing to accept the first job offered to her. Accordingly, the Tribunal made an award of £2,755.41.

In addition, the Applicant was awarded the sum of £4,000 in compensation for injury to feelings occasioned by the Respondent's discriminatory conduct. It was accepted that the Applicant was a "disabled person" for the purposes of the Disability Discrimination Act 1995. The duties that were aggravating the Applicant's condition were only a small part of her job, and with managerial intervention they would have easily been remedied. The Respondent had failed to make adjustments, and this conduct was unjustified.

Comments

This case highlights the need for employers to take care in dealing with all types of employee illness, as the definition of "disability" for the purposes of the Act is wider than the layman's traditional definition of "disability".