ASDA wins disability discrimination case
A former ASDA warehouse operative, who was dismissed from his job in May 2019 for health reasons, has lost a claim for disability discrimination. The employee, Mr. Daniel Kuma, alleged that they had been treated unfairly due to their disability and that ASDA had failed to make reasonable adjustments.
Mr. Kuma was off work for a total of 480 days before being dismissed due to his health issues making him incapable of doing his job.
ASDA did not dispute that Mr. Kuma had a disability (stress and depression). However, they disputed that they had acted unfairly and had failed to make adjustments.
The return to work plan
ASDA showed that they had a policy in place for how employees should behave if they are off work due to sickness, which they had followed. An HR Business Partner had met with Mr. Kuma frequently, due to his long-term absence. Occupational health advice had been sought and reports outlining Mr. Kuma’s fitness to work and possible adjustments were obtained.
The HR team discussed Mr. Kuma’s return to work with him and explored possible options to help facilitate a return. These included creating a ‘Wellness Action Recovery Plan’, conducting a Stress Risk Assessment, considering working with trusted colleagues on night shifts, changing shifts, buddying with colleagues for support and a phased return to work.
Mr. Kuma had stated that work was a trigger for his condition. Although he was reported as being suicidal, he expressed that if he returned to work, he wanted managers to keep an eye on him and take him to hospital if necessary.
Mr. Kuma’s psychologist and the occupational health team advised a phased return to work with a review after four weeks, but Mr. Kuma reported that his treatment had not improved his condition and that he had also developed PTSD. Therefore, he was unable to return to work. The HR Manager recorded that due to the employee’s conditions, amended hours or roles could not be offered.
Ill health capability review
The phased return to work sadly did not succeed and Mr. Kuma was later invited to an “Ill Health Capability Review” meeting in May 2019, to discuss his ongoing health and its impact on his job. The meeting discussed the occupational health assessment opinion, GP and specialist reports, alternative duties were explored and the impact of the Mr. Kuma’s absence on the business was recorded.
ASDA documented that they were concerned that Mr. Kuma’s condition would worsen if he returned to work. It concluded that the Mr. Kuma’s mental health was unlikely to improve in the foreseeable future and his employment was terminated due to ill health.
Mr. Kuma employee appealed the decision and subsequently lodged a claim with the Employment Tribunal, claiming that ASDA had failed to make reasonable adjustments.
The law and reasonable adjustments
An employer has a duty to make reasonable adjustments for a disabled employee if a provision, criterion, or practice (PCP) puts the employee at a substantial disadvantage compared to a non-disabled person.
Factors that determine what is considered reasonable include the extent to which the adjustment would remove the disadvantage, practicality, cost, employer resources, availability of a system and the size and nature of the employer’s activities.
What is ‘reasonable’ is only ever an objective legal decision, based upon the specific facts of each case.
The Tribunal decision
The Tribunal found that despite regular meetings with HR and the receipt of occupational health advice, it was not possible for ASDA to make reasonable adjustments to help Mr. Kuma return to work, due to the nature of his illness. Alternative duties, shifts and working patterns had all been explored.
Furthermore, the Tribunal found that Mr. Kuma’s suggestion that managers could accompany him to hospital if he had hallucinations was not feasible. It also presented a health and safety issue for ASDA.
The Tribunal found that ASDA had followed a fair process and fulfilled their duty to make reasonable adjustments. Mr. Kuma’s claim of discrimination due to disability was not valid.
Although dismissal on health grounds may not be easy path to take, the decision shows that employers following a clear process, exploring adjustments and return to work options can still dismiss fairly.