Whether you are an employer or an employee, you are likely to have come across the Equality Act 2010 (the EA 2010).
The EA 2010 prohibits discrimination in employment in respect of the protected characteristics of age, disability, gender reassignment, marital or civil partnership status, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Disability is a complex protected characteristic with many elements involved. The EA 2010 sets out a technical meaning of ‘disability’ in section 6 and Schedule 1, which does not necessarily correspond with most people’s perceptions of disability.
Disability discrimination law protects a person who is actually disabled and those subjected to having a perceived disability, provided the perception is of a health condition that meets the legal test of disability (Chief Constable of Norfolk v Coffey ).
The legal test for establishing a disability requires a physical or mental impairment that has a ‘substantial’ and ‘long-term’ effect on a person’s ability to carry out normal day-to-day activities. Long-term requires the impairment to last 12 months or more or be a recurring condition; and, substantial requires it be more than minor or trivial, effectively excluding short-term conditions.
Kuppala v HBOS Plc (2018)
Mr. Kuppala was employed by HBOS from 5 January 2004 as a bank manager at their Halifax branch in Oxford Circus, London. He was summarily dismissed on 2 July 2018 for gross misconduct and, issued a claim for unfair dismissal; wrongful dismissal; and, disability discrimination (Type 2 diabetes and a stress related condition).
Mr. Kuppala was diagnosed with Type 2 diabetes in August 2017, but did not inform his employer immediately, as he was worried about the risk to his role following a restructure. In April 2018, he was informed by HBOS that he had not been given a role in the company’s restructure, although he was not formally put at risk of redundancy until 5 June 2018. He had also previously been referred to a mental health clinic because of work-related stress, which HBOS was aware of.
HBOS’s decision to dismiss was based on an investigation and 3 occasions sampled where Mr. Kuppala had demonstrated serious breaches of procedure that showed a disregard for security and safety. The investigation was triggered when, on 20 May 2018, a customer was inadvertently locked in the branch for 3 hours, after Mr. Kuppala had to leave work quickly for an emergency appointment. Mr. Kuppala told the Tribunal that other staff were in the branch but did not make him aware that a customer was still inside.
HBOS’s investigation revealed security concerns and breaches of procedure and policies, which resulted in a disciplinary hearing and dismissal. Mr. Kuppala failed in his appeal, where he claimed he was treated more harshly than others in the same circumstances and that HBOS failed to take into account how stress affected his health.
Mr. Kuppala did disclose to the HBOS investigator his diagnosis, his need to eat regularly and on time and that, in the last 2 months, with branch closures, he had had to skip lunches. He also explained the staff shortages and his position of there being a lack of support.
The Tribunal’s Decision
The Employment Tribunal found in favour of Mr. Kuppala accepting that he had a physical impairment (diabetes) from August 2017.
Whilst the Tribunal recognised his failures to follow exit procedures on the 3 occasions sampled, it considered that his diabetes was uncontrolled at the relevant times, and was at least partly responsible for his failure to follow procedures. He had failed to take medication required to control it, and, was missing lunches as a result of a significant increase in footfall at the branch. The Tribunal considered, on the balance of probabilities, that from at least early April 2018, he was suffering from low blood sugar levels at the end of the day and that this made him lose concentration and feel lethargic and unwell, inevitably having a detrimental effect on his performance in work.
The Tribunal considered his previous 13 years of work and found, on the evidence, that he had in fact undertaken measures to improve security and procedures at the branch in 2017-2018, suggesting he took security and procedures seriously.
Thus, his dismissal for failure to follow procedure was because of something arising in consequence of disability. This meant the burden of proof moved to HBOS to demonstrate the dismissal was a proportionate means of achieving a legitimate aim.
The Tribunal criticised HBOS’s decision to dismiss as unfair, especially as it allowed Mr. Kuppala to continue working in a position of responsibility during its investigation. The Tribunal considered a less discriminatory measure would have been a more proportionate means of achieving its legitimate aim of ensuring security of the branch and safety of customers and employees, such as a final written warning with training and referral to occupational health.
The Tribunal ordered HBOS to pay £49,457.11 to Mr. Kuppala, including 3 months’ notice pay for wrongful dismissal and compensation for injury to feelings and loss of earning up to the point he would have worked until his role became redundant. The Tribunal accepted Mr. Kuppala contributed to his dismissal and his compensation for unfair dismissal was reduced accordingly.
Lessons for Employers
The case above demonstrates that, even when an employee has committed serious breaches that could otherwise amount to misconduct warranting dismissal, an employer’s failure to investigate an employee’s claims regarding the impact of a disability can result in a successful discrimination claim.
Disability is a complex area and can arise in various contexts such as timekeeping, underperformance, sickness absence and grievances. Conditions such as type 2 diabetes can be classed as a disability if they have a more than minor adverse effect on a person’s ability to carry out normal day-to-day activities.
Employers are required by law to make reasonable adjustments to make sure workers with disabilities, or physical or mental health conditions, are not substantially disadvantaged when doing their jobs. This requirement applies even before a role is filled, such as, changing the recruitment process so a candidate can be considered for a position.
All our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.