In Collinson v Dr Michie & Others (t/a Blacketts Medical Practice ET/2501780/2018) an employee’s associative disability discrimination claim succeeded when her employer insisted she be available to cover sickness absences at short notice because they were worried about her having to care for her disabled twins.
The facts in Collinson v Dr Michie & Others (t/a Blacketts Medical Practice)
Ms Collinson (the ‘Claimant’) was employed by Blackett’s Medical Practice (the ‘Respondent’), a GP surgery, as a receptionist. She worked on Tuesdays, Wednesdays, Thursdays and Fridays. She had also qualified as a phlebotomist and would take blood samples from patients.
The Clamant fell pregnant and had twins who were born prematurely and had significant heath issues. Both were accepted by the Respondent as being disabled.
In November 2017 the Claimant asked for a meeting to discuss her returning to work in February 2018. She outlined her request and was told ‘don’t worry Stacey, if we can’t accommodate your request we’ll give you time to find another job’. On 21 November the Claimant submitted a request for Mondays and Wednesdays 8am-5pm. She was invited to a meeting on 8 December to discuss her request and began to ask about when she could do her phlebotomy clinic, but before she could finish her question, Mrs Turner, a member of the senior manager team said there was no room available for her to do it in. The Claimant was then asked if she would be able to provide holiday and sickness cover at short notice, even though she had not been required to do the latter previously. The Respondent was effectively asking the Claimant to guarantee her availability to cover unexpected sickness absences at short notice. The Responded expected the Claimant to be as flexible as everyone else despite her twin’s ill health. The Claimant responded to say that she would be available some of the time, but could not guarantee every time.
The Respondent refused the Claimant’s flexible working request without even considering whether other employee’s hours could be changed to accommodate the Claimant’s request. Their refusal meant the Claimant would no longer be able to work at the Respondent. The Claimant appealed the decision on 17 December 2017. By doing so she was making a protected act.
The Respondent took advice from Peninsula who recommended an alternative arrangement should be suggested to the Claimant with a review date. Peninsula also advised that the Claimant’s position regarding sickness cover was reasonable.
A meeting took place on 26 January to discuss the report provided by Peninsula. The Claimant was advised that the flexible working request would be granted on a temporary basis until the end of April and then reviewed. She was offered a phlebotomy clinic on a Friday, despite the fact the Respondent knew she was unable to work that day. On 29 January 2018 she e-mailed to accept the new hours, but she did not agree to the Friday phlebotomy clinic. The Respondent then wrote to the Claimant formally setting out the new working pattern and stating ‘should this arrangement have a detrimental effect on the operations of the organisation, it may be necessary to review the situation earlier.’
The Claimant was suffering from stress, anxiety and panic attacks because of the situation at work and was signed off sick for 6 weeks from work. On 27 February the Claimant received her payslip and noticed she had been paid based on a 14-hour week. Because she had rejected the proposal when told it could be brought to an end at any point, she understood her contracted hours remain unchanged.
On 1 May the Claimant raised another grievance, which was not upheld by the Respondent. The Claimant appealed but refused to attend the appeal hearing as it would cause her further distress. On 4 September she emailed the Respondent her resignation.
The decision of the Employment Tribunal
The Claimant’s claim of constructive unfair dismissal was upheld. The ET said that the requirement that she work whatever hours suited the Respondent and be flexible was capable of amounting to fundamental breach of contract which entitled her to resign.
Her unlawful deduction of wages claim also succeeded on the basis that it takes a contract to vary a contract. As there was never a consensus reached as to the new terms the prior contracted hours remined unaltered.
Indirect sex discrimination. The requirements (a) for the Claimant to work her pre maternity leave contracted hours at times and on days which best suited the practice and (b) be able to cover shifts both for holidays and, at short notice, sick absence of the staff were PCPs which placed woman at a particular disadvantage because it is an established fact that they are more likely to need to work at times to suit arrangements they can make for childcare. The PCP’s put the Claimant at a disadvantage. The Respondent was unable to show that the PCPs were a proportionate means of achieving its aim of ensuring good patients care. Intrinsic to this decision was the fact that the Respondent did not even ask the Claimant’s co-workers whether they would be able to swop shifts to accommodate the Claimant’s flexible working request.
Associative disability discrimination. This claim succeeded. The ET held that the Claimant had shown primary facts from which they could infer that the Respondent subconsciously assumed the Claimant would be unreliable as well as inflexible because her children were disabled. The reason why they acted as they did was because of assumptions they made about the twin’s particular disability.
The Claimant’s claim of failure to deal with a flexible working request was time barred and therefore failed. Her direct sex discrimination claim also failed as the ET said there would have been no different treatment of a male employee with disabled children who had similar childcare problems than there was of the Claimant.
The pregnancy/maternity discrimination claim also failed as none of the detriments the Claimant was exposed to were because of any of the matters set out in section 18 of the Equality Act 2010. Her pregnancy and maternity leave in itself did not trouble the Respondent at all.
Finally, the Claimant’s victimisation claim was dismissed. The ET held that the Respondent had not subjected the Claimant to a detriment. They could not find any acts or omission on the part of the Respondent which arose out of the Claimant making allegations of discrimination in her grievances.
Our solicitors’ views on the case of Ms Collinson v Dr Michie & Others (t/a Blacketts Medical Practice)
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case:”This case is of interest because the Claimant was relying on the disability of her children to successfully bring a claim for disability discrimination. The Disability Discrimination Act does not, on its face, apply to associative discrimination. However, the ECJ held in in 2008 that the effect of the relevant directive was to outlaw such discrimination and words were added to the DDA to achieve that end”
The decision of the Employment Tribunal in Ms Collinson v Dr Michie & Others (t/a Blacketts Medical Practice(ET/2501780/2018) can be found here.