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In the case of Mr A Singh v NFT Distribution Operations Ltd: 1401292/2018, the Employment Tribunal held that an employer had discriminated against an employee for withholding employer’s sick pay (ESP) (the company sick pay policy).

The facts in Mr A Singh v NFT Distribution Operations Ltd

The claimant commenced employment on 1 February 2016 with the respondent as an LGV driver.  Approximately nine months later he showed signs consistent with coeliac disease.

  • In November/December 2016, the claimant made a request to be assigned to warehouse duties as his condition was temporarily causing diarrhoea. The request was declined.
  • In November 2017, an occupational health assessment was undertaken. The report indicated that the claimant should be redeployed to a temporary role for six months so that he could have access to toilet facilities.
  • His employers questioned whether Mr Singh’s adherence to a gluten free diet had been inconsistent. Mr Singh argued that sticking to the diet was very difficult while he was on the road and particularly finding meals that would meet the strict requirements of a gluten free diet.
  • On 29 November 2017, the claimant’s GP provided a medical note to say that the claimant was fit for work on the basis of adjusted duties. His employer had intended to put the claimant in a warehouse role which would require some health and safety training to be undertaken which couldn’t be done immediately.  In the interim, it was proposed that Mr Singh would undertake some litter cleaning duties.  There was no suggestion at that stage that the claimant would be paid other than his ordinary salary for this period.
  • The claimant was due to commence the interim role on 5 December 2017. On the afternoon of 4th December, the claimant was provided with a payslip which showed from 29 November onwards, the date which he had been certified as unfit for work, save in an adjusted role, the claimant had not been remunerated at ESP rate (the company sick pay rate).
  • The claimant was extremely unsettled by this. He visited his doctor at 5 pm the same day and was provided with a sick note running through to January 2018, identifying a range of conditions including coeliac disease and stress at work.
  • His employer doubted the legitimacy of the sick note or the information that the claimant had provided to his GP to obtain it. The employer questioned whether the claimant was strictly adhering to his diet and whether he had earlier been the author of his own misfortunes in being unable to perform the LGV duties.
  • His employer placed the claimant on SSP rather than ESP for the period 5 December onwards.

Conclusions and decision of the Employment Tribunal

The Employment Tribunal held that the claimant’s health condition, specifically coeliac disease, amounted to a disability for the purposes of the Equality Act 2010.

The Employment Tribunal further held that the decision to pay at SSP rather than ESP rate constituted “unfavourable treatment” for the purposes of the s15 complaint – the question was whether this unfavourable was something that arose in consequence of the claimant’s disability)?

The Employment Tribunal came to the conclusion that the unfavourable treatment that the claimant had suffered was in consequence of his disability based on the following:

  1. The claimant’s failure to attend work on the morning of 5 December 2018 (as a result of the effects of his disability); and
  2. The respondent’s perception that his failure to attend work was because he had failed to adhere to his recommended diet (which was not in fact the case)

The Employment Tribunal concluded that both of those reasons fell comfortably within the ambit of Section 15(1)(a) Equality Act 2010 and that the treatment the claimant had been subjected to was therefore discriminatory. The Employment Tribunal further held that the respondent’s action was not a proportionate means of achieving a legitimate aim.

The Employment Tribunal awarded the claimant £6,600 inclusive of interest (inclusive of a sum of £3,500 in respect of injury to feelings).

Our lawyers’ comments on the case

Melissa Chin, a Legal Executive in the employment department at Redmans, made the following comment on the case: “Employers must make sure that decisions that they make do not adversely affect disabled employees as a result of that employee’s condition – if employers fail to take reasonable and proportionate decisions then they may, as in this case, face a successful claim under the Equality Act 2010”.

The decision of the Employment Tribunal in Mr A Singh v NFT Distribution Operations Ltd: 1401292/2018 can be found here (judgment) and here (reasons).

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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