Sainsbury’s worker awarded £32k after refusing overtime

£32k award after refusing overtime on health grounds

An employment tribunal has found that Sainsbury’s discriminated against a disabled employee by failing to adjust absence management processes and workplace arrangements.

The case highlights a recurring HR risk: when employers know an employee is disabled, but continue applying standard procedures without adapting them to reflect the employee’s condition.

Background

Mr R J Taylor joined Sainsbury’s in September 2020 as a trading assistant and was promoted to Trading Shift Manager in August 2022.

Mr Taylor had ankylosing spondylitis, a chronic inflammatory condition affecting the spine that causes pain, fatigue and flare-ups. The condition was accepted by the employer as a disability for the purposes of the Equality Act 2010.

His symptoms fluctuated. At times he experienced severe pain, fatigue and increased vulnerability to infection, due to immunosuppressant medication. Sainsbury’s occupational health team recommended a number of workplace adjustments, including a predictable working routine, task rotation to reduce strain, short breaks during shifts and adjustments to working hours. 

A workplace adjustment plan was created following this advice. One key adjustment requested was to only work contracted hours, rather than working overtime, as working longer could cause pain. However, Mr Taylor was told he was “expected” to work overtime each week.

Further difficulties soon emerged regarding attendance management, shift patterns and pay during sickness absence.

Notably, Mr Taylor’s disability caused periods of sickness absence. These absences were counted under the company’s standard absence management policy, which resulted in a formal written warning. The warning had knock-on effects and also affected his eligibility for bonus payments.

The tribunal found that the employer should have considered adjusting how the policy applied to disability-related absence. Applying the policy without modification placed Mr Taylor at a substantial disadvantage, compared with non-disabled colleagues.

Working hours expectations

The role of Trading Shift Manager involved expectations that staff could work additional hours beyond their contracted shifts. Because of his condition, Mr Taylor struggled to commit to additional hours when experiencing flare-ups.

The tribunal heard that this lack of availability was cited when managers told him he had not successfully passed his probation period.

The tribunal considered that requiring flexibility around extra hours could disadvantage someone with a fluctuating physical condition. Again, the question was whether adjustments should have been made.

Mr Taylor also argued that his company sick pay entitlement had refreshed after a certain date and that he should have received company sick pay, rather than statutory sick pay during later absences. The tribunal found that he had been underpaid, which amounted to an unlawful deduction from wages.

Mr Taylor eventually resigned in July 2023. He argued that the employer’s treatment of him, including the handling of disability-related absence and other issues, amounted to a fundamental breach of contract.

The tribunal did not uphold all elements of his claim, but it did find liability in relation to constructive dismissal, elements of disability discrimination and pay issues. The tribunal dismissed the claim of direct disability discrimination.

The tribunal concluded that the employer had failed to make reasonable adjustments, particularly by not adapting its absence management approach for disability-related absence.

It also upheld the claim relating to unlawful deduction from wages connected to sick pay.

Why the case matters for HR professionals

Many organisations have well-developed absence management procedures. The difficulty arises when these policies are applied without considering disability.

The Equality Act 2010 requires employers to take positive steps to remove disadvantages caused by workplace rules or practices.

Attendance triggers, probation expectations and overtime requirements can all be considered “provisions, criteria or practices” that may need adjustment.

This case also demonstrates the importance of following through on occupational health advice and workplace adjustment plans in practice, not just documenting them.

Key points for HR

• Disability-related absence may require adjustment of absence trigger points or warning processes
• Standard attendance policies can amount to a provision, criterion or practice that disadvantages disabled employees
• Occupational health recommendations and workplace adjustment plans should be actively implemented and reviewed.
• Expectations around working additional hours or flexibility may need modification where an employee has a fluctuating condition.
• HR should carefully check company sick pay entitlement rules, particularly when entitlement refresh periods apply.