The employee, Mark Misell, who has learning difficulties and is illiterate, was found smoking in a trolley bay of the supermarket car park as opposed to one of the designated smoking areas for workers.
Backed by the GMB union, Misell is now bringing a claim to the Employment Tribunal for disability discrimination. This short article will consider what remedies may be available to Misell as well as the steps employers can take to avoid similar issues.
Potential remedies for discrimination employment tribunals
The GMB has informed Asda that the case is being dealt with by their legal team and that they intend to bring a claim against the supermarket giant.
Under the Equalities Act 2010, Misell is deemed disabled as a result of his learning difficulties. It is likely that Misell will bring a claim for discrimination “arising out of” his disability, on the basis that he is being dismissed for being unable to read the smoking policy.
In doing so, his legal team will argue that Asda treated him unfavourably because he is illiterate, an element connected to his disability.
Misell’s lawyers will have to prove that Asda knew, or could have been reasonably expected to have known, that Misell had a disability.
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It will then fall to Asda to prove that the unfavourable treatment of Misell was a proportionate means of achieving a legitimate aim.
Asda will likely argue that Misell committed gross misconduct by breaching the policy and that his dismissal was necessary to avoid a repeated health and safety concern.
In addition to the first claim, Misell may also bring a claim against Asda for their failure to make reasonable adjustments.
Employers have a duty to ensure that workers are not substantially disadvantaged in carrying out their role compared with able-bodied colleagues.
Misell’s lawyers will likely argue that the smoking policy was not produced in such a way that those with learning difficulties would understand it and adjustments should have been made to make it more accessible.
How can employers avoid a similar situation?
Employers should ensure they act as soon as they know or could reasonably be expected to know of the worker’s (or job applicant) disability.
Employers should establish the nature of the disability and explore adjustments which could be made to support the worker in their role by reducing any barriers.
Adjustments can include physical changes to the premises, specialised equipment, or changes to the way things are carried out.
Asda should have ensured that their policies were accessible and understood by all their staff.
Going forward, they could implement video or interactive training for workers with learning difficulties, rather than lengthy written policies and procedures.
Other options might include clearer signage or a buddy support system to help colleagues with significant learning disabilities.
What is considered “reasonable” is subjective however factors which should be considered include, the cost, the practicalities and the effectiveness of the adjustment.
Employers should also be mindful that not every disability is the same and what may be considered a reasonable adjustment for one worker may differ for another.
Being proactive and engaging regularly with disabled workers will guide employers to make decisions on where adjustments can be made or where further adjustments could be made. A record of what adjustments have been made should be kept and reviewed regularly.
To conclude, the onus is very much on the employer to assist their disabled workforce in carrying out their roles.
In Misell’s case we of course do not yet have the full picture or a response from Asda, but it is a good reminder for all employers regardless of their size to ensure they are supporting their disabled staff. Irrespective of the legal position it is also a clear example of the reputational impact that such decisions can have.
Rhona Darbyshire is partner and head of employment at law firm Cripps Pemberton Greenish
