A man who works for an organisation providing community-based services to children has been awarded compensation after an Employment Tribunal (ET) found that his employer had discriminated against him due to his disability and failed to make reasonable adjustments.
When he began working for the organisation, he completed a medical questionnaire in which he noted that he was autistic. Initially his role involved play work provision for children with neurodevelopmental conditions, but he was later asked to cover open access sessions, which were available to all. He agreed but asked for adjustments to be made. He struggled to work with background noise and music was generally played during the open access sessions. He also struggled with bright lights indoors. He later raised the question of whether adjustments could be made to allow him to work at public events held by the organisation, at which music was played.
Several days after a Bonfire Night event, a meeting took place at which the organisation’s Chief Officer commented negatively on the need to find ways of making adjustments and joked, “Why can’t you be ordinary and perfect like the rest of us?” The man later stated that the situation was having an impact on his mental health. Shortly afterwards, his employer stopped providing him with open access shifts. He subsequently brought a number of complaints to the ET, including disability discrimination, failure to make reasonable adjustments, harassment, victimisation and unauthorised deduction from wages.
The ET considered that, while his effective exclusion from the public events involved unfavourable treatment, his employer was looking to maximise attendance and engagement and its decision that music should be played was a proportionate means of achieving a legitimate aim. Nor did it constitute a failure to make reasonable adjustments. However, the employer had failed to take reasonable steps to avoid disadvantage to the man caused by the bright light in the staff kitchen. The ET also concluded that certain remarks made to him, including the ‘ordinary like the rest of us’ remark, had had the effect of violating his dignity and constituted harassment.
The decision to remove him from the open access role had purportedly been motivated by concern for his mental health. The ET remarked that, in relation to a decision with such a severe impact, the justification needed to be clearly substantiated by reference to medical evidence, but the employer had taken no steps to obtain such evidence. He had indicated that he was willing to do the shifts and subsequently obtained a fit note from his GP. His complaint of disability discrimination on that ground was therefore upheld. Also upholding his victimisation claim, the ET noted that the decision to stop offering him open access shifts had arisen very soon after he had raised a grievance. The ET considered that the circumstances were sufficient to shift the burden of proof to the employer, and was not satisfied that it had established a non-discriminatory reason for the treatment.
The man was awarded £15,000 for injury to feelings and £945 for unauthorised deductions from wages in respect of the open access shifts. Together with interest, his award came to £17,155. The ET also recommended that he be reinstated in the open access role.