An Employment Tribunal reported by the People Management website appears not to have been covered by the national media, which is a shame because for various reasons it deserves a wider audience.
The case was brought by a disabled shop assistant, Miss St Hilaire, who was born with hip defects.
The tribunal heard that Miss St Hilaire’s condition left her with significant mobility problems and that some of her responsibilities, such as stacking shelves, caused her pain. She had undergone two hip replacements followed by three further operations.
Her employers were aware of her disability and, following a period of sickness absence because of her hip problems, she was told they would establish exactly what she could and could not do, and where possible would make reasonable adjustments to enable her to return to work successfully.
A particular area of concern was Miss St Hilaire’s inability to use the store’s toilet facilities because they were upstairs and her mobility problems prevented her from reaching them. She instead used one in the shopping centre where the shop was located.
Around March 2008, Miss St Hilaire was asked to inform her manager when she was leaving to use the toilet, and when she returned. From about October 2014, however, that toilet was no longer available for her use, and she had to use one in the local market area that was approximately a five-minute walk away. She later discovered that Home Bargains had made deductions from her pay for the time that she was absent from work to use the toilet.
The judge found that Miss St Hilaire was treated unfavourably and put at a substantial disadvantage compared to other employees. He rejected Home Bargains’ submission that Miss St Hilaire needed to clock out to use the toilet so that they could track who was on the premises when conducting fire evacuations.
The judge also found that Home Bargains’ provision, criterion or practice (PCP) which stated that sales assistants were required to stand, walk around, negotiate stairs and lift and carry stock placed Miss St Hilaire at a substantial disadvantage. He added that Home Bargains should reasonably have been expected to know this and that, after Miss St Hilaire had returned from absence related to her condition, Home Bargains had failed to ascertain what was meant in terms of “light duties”. Nor was there evidence that a return to work discussion had taken place.
Miss St Hilaire was awarded £9,315.07, comprised of £8,000 for injury to feelings and £1,315.07 as interest.
Marsha Thompson, lawyer in Slater and Gordon’s employment team, told People Management that the onus was on Home Bargains to consult with Miss St Hilaire about how her disability affected her. “Employers need to ask their employees what they need, but Home Bargains failed to do much to help her,” she said.
James Medhurst, lawyer at Fieldfisher, said employers must “go the extra mile to cater for disabled employees if they do not have disabled facilities on their own premises”, while still treating them fairly compared to other employees.