Veitch Penny LLP - Exeter | Crediton, Devon

Case

Tudor v Spen Corner Veterinary Centre Ltd and anor
Employment Appeal Tribunal - (03 June 2006)

Issues

(1) Disability discrimination
(2) Visual impairment
(3) Reasonable adjustments

Facts

Hayley Tudor had been employed by the clinic as a nursing assistant and receptionist. In May 2005 she suffered a stroke and as a result of the stroke lost her sight. At that point it was unknown whether her sight would return. Ms Tudor’s mother informed her employer of the situation following which Ms Tudor was told that she was being dismissed as of July 2005.

Ms Tudor wrote to her employer appealing against the dismissal and raising a grievance under the statutory grievance procedure. She asked for the grievance to be dealt with in accordance with the modified grievance procedure. In response, her former employer sent her a questionnaire listing 25 duties and asking whether or not she had performed them prior to her stroke and whether or not she could continue to perform them. Ms Tudor refused to complete the questionnaire as she felt that she was not in a position to provide the information required and that the grievance should be dealt with on the basis of information available to her employer at the time the dismissal was made. Her employer then said that it was unable to agree to use the modified procedure without the questionnaire being completed and that it could not conceive of any adjustment that could have been made to accommodate her disability.

Later that year, Ms Tudor was offered her job back on a trial basis together with back pay. She rejected the offer as she was of the view that there had been a breakdown in trust and confidence between the parties and a failure by her employer to acknowledge her injury to feelings.

She made a claim arguing that she had been directly discriminated against under the Disability Discrimination Act together with claims that she had been unfairly dismissed; that her employer had failed to provide her with written reasons for her dismissal; that she had been discriminated against by her employer’s failure to make reasonable adjustments under the Disability Discrimination Act and that she had been treated less favourably for a reason related to her disability.

Decision

The Tribunal found that the employer had made generalised and stereotypical assumptions about Ms Tudor, the duration of her disability and its effects. They had not met with her, sought her input or obtained a medical report. This was sufficient to raise a prima facie case for discrimination and accordingly the burden of proof shifted to the employer to show that no discrimination had occurred. A hypothetical comparator was used of an employee who had a broken leg who did not know when she would be able to return to work. In comparing the two, the Tribunal found that in relation to the comparator the employer would not have made stereotypical assumptions, nor rushed to a decision without proper consideration of the circumstances. The finding was made that Ms Tudor had been directly discriminated against on the grounds of her disability.

The Tribunal felt that a number of steps could have been taken by the employer to make reasonable adjustments including the use of speech software, tactile labels and adjustments to the premises. It also noted that funding had been available to her through Access to Work. Ms Tudor was also successful in her claim for unfair dismissal and failure to provide written reasons for the dismissal was also deemed to be automatically unfair due to the employer’s failure to comply with the grievance procedure. (The employer was however successfully able to argue for a 50% reduction in any compensation for unfair dismissal to reflect the chances of Ms Tudor failing to remain in employment even if reasonable adjustments had been made).

Comments

This is one of the few cases in which a complaint of direct disability discrimination has been successful as claims are more normally made on the basis that the disabled person had been less favourably treated for a reason related to the claimant’s disability. This case makes clear the point that employers will be acting unlawfully if they make assumptions about disabled people and their abilities, or if they fail to consider what adjustments may be made to enable the person to return to work.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
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