A recent Tribunal case has highlighted how employers, under the Equality Act 2010, are required to make reasonable adjustments for disabled employees, which includes accommodating overtime schedules that prevent them from working specific overtime hours.
Ricky Taylor, a recently promoted customer and trading manager at the St Albans’ branch of Sainsbury’s was awarded £32,321 in compensation for disability discrimination, unfair dismissal, and unlawful deduction of wages (for unpaid sick pay).
Expectation versus engagement
The claimant suffered from ankylosing spondylitis, a form of arthritis causing chronic pain, stiffness, and severe fatigue. As part of his new role, awarded to him in September 20222, Ricky Taylor, who worked the night shift, was expected to work regular, unpaid overtime – an additional 10 hours each week, often staying past his 7 a.m. finish time in order to hand over from his night shift. This worked out to be an average of 2 hours extra each shift.
Ricky Taylor wrote to HR to complain about the expectation which was placed on him, despite his disability. He informed his employer that he needed specific adjustments made for him, and wanted to work four night shifts per week because he preferred to be active during his shifts and this would allow him to ‘rest’ and recover afterwards. He refused to work beyond his contracted hours, because the excessive hours caused him pain and fatigue.
Failed probation
Sainsbury’s said they believed Mr Taylor’s refusal to work beyond his contracted hours was because the overtime hours were unpaid and that his commute would be longer, the later he finished his shift. And because of this, after 12 weeks, Sainsbury’s failed Taylor’s probation, citing his lack of extra hours and attendance.
The company also invited him to a disciplinary meeting where he was given a warning about his absence levels. And finally, because during the probation period, Taylor took absences from work that were related to his disability Sainsbury’s shifted his sick pay to the statutory rate as he had used up his entitlement of company sick pay. Ricky Taylor resigned from his role in July 2023
Constructively unfairly dismissed
Employment judge George Alliott ruled that the requirement to work overtime placed Taylor at a “substantial disadvantage” due to his disability. The tribunal found that he was constructively unfairly dismissed and that Sainsbury’s had failed to:
- Make reasonable adjustments—such as adjusting his shift time
- Pay him company sick pay – which represented a fundamental breach of his contract of employment
How can I help?
Having disability policies on reasonable adjustments in place is not enough. Employers need to review and apply them consistently in their everyday management decisions. If possible they should also implement disability awareness training to improve staff knowledge and ensure an inclusive culture.
Employer must always take the time to speak with an individual to better understand their condition and its implications on their performance at work. In addition, they should look to record disability-related absence separately to general sickness absence and potentially adjust the number of absences an employee has within a certain time period so disabled employees are not unfairly penalised.
Finally, employers must show flexibility, avoid applying rigid policies across the board, and engage in meaningful discussions with disabled employees to fully understand their individual circumstances and needs, rather than assuming they are being unwilling and/or treating their refusal or reluctance as a disciplinary matter.
For help, advice and support in supporting a disabled worker, adjusting absence policies, making reasonable adjustments for overtime and avoiding contractual sick pay violations, please get in touch today – caroline.robertson@actifhr.co.uk