Harold's direct disability discrimination case

Direct disability discrimination at work

Direct disability discrimination is where you are treated less favourably because of your disability than someone without a disability would be treated at work.

An example of direct discrimination because of a disability at work would be:

A sales associate who has a stammer is denied a managerial role due to an assumption that they do not have the communication skills required to succeed.

There have been numerous Employment Tribunal cases that make a claim for direct disability discrimination. We’ll look at one such claim below.

The background

This case was brought against a homelessness charity after Harold was hired as an advisor from 2014 until he resigned in 2017.

He was originally brought on to provide service users advice over the telephone, but moved over to their web-chat service, in July 2017 for a four-week trial period.

Due to consistent grammatical and spelling errors, Harold received constant negative feedback from his team leader. He later suspected that he was dyslexic, however, he did not want to return to working the phone line as he preferred the more regular hours of the web-chat.

During his review, Harold said that he felt more comfortable working with the web-chat service. Although his feedback scores were good, his team leader still felt that the quality of his written responses was not of a high enough standard. He was then given a week to improve.

Harold requested a leave of absence as he felt fatigued, thinking it was related to his dyslexia. However, he was then told that he failed the trial period and would be moved back to the phones.

Harold went off sick with anxiety. After coming back, he told his employer that he had been diagnosed with dyslexia and requested a few reasonable adjustments including a phased return. This was granted by his employer.

However, Harold thought the phased return wasn’t working as he continued to feel unwell and asked if he could return to the web-chat. This was denied as they did not perceive that his dyslexia affected his ability to advise over the phone and that his performance during his trial on the web-chats was unsatisfactory.

Harold resigned, bringing claims for failure to make reasonable adjustments, discrimination arising from disability, victimisation and constructive unfair dismissal in the Employment Tribunal. He later amended his claim to include direct disability discrimination and harassment related to his disability.

The result

His claims for victimisation failed as Harold had not successfully argued that the detriments he faced were related to a protected act. The Tribunal also found that some of his victimisation claims fell under the umbrella of his other claims.

Although his claims for harassment, direct disability discrimination and aspects of victimisation were presented out of time, the Tribunal found it just and equitable to extend time to allow them to hear the complaints. 

Harold’s claims for constructive unfair dismissal, direct disability discrimination, discrimination arising from disability, harassment, and failure to make reasonable adjustments succeeded.

This is because Harold’s job description as an advisor included both telephone and web-chat work. Denying him the reasonable adjustments that could help him succeed in his role was not acceptable.

He was awarded £28,324 in loss of earnings and interest.

Important things to remember about this case

Employers may have a duty of care to consider reasonable adjustments if they see their employee facing disadvantages due to a physical or mental impairment, even if there is no official diagnosis available.

Employers cannot take away an aspect of an employee’s role if that task proves difficult for them due to their disability, just to avoid having to make reasonable adjustments.