The claimant has a shoulder condition (Bilateral Calcific Bursitis) for which he received a series of adjustments to his role. This was prior to the event which gave rise to the index claim.

In January 2019, the claimant was referred to occupational health by the company nurse. At the time of the appointment, the claimant was actually off work due to a flare up of the condition. The report from occupational health was not received until August 2019 by which point the claimant’s fit note had expired and he had returned to work for a few weeks.

The report outlined that whenever the claimant did return to work that he nature of the duties in his role would lead to an aggravation of the shoulder condition. This was even with restrictions/adjustments in place. There was a suggestion of redeployment. It was on foot of the report that the claimant was suspended from work on medical grounds.

Difficulties arose between the claimant and respondent about pay during suspension. The respondent stated that the claimant would have to report as ‘sick’ and ‘get a sick line in’. This continued throughout September into October. At that point, the claimant was informed that there were no other roles available for him and that his full pay would stop.

Despite this, the pay did continue and, following another assessment by occupational health, the claimant was able to return to his substantive role. The claimant claimed that there had been direct disability discrimination on the basis of his suspension from work. He further asserted that there had been a failure to provide appropriate reasonable adjustments which should have included alternative roles or working with reduced duties.

An interesting side note was that one of the respondent’s witnesses was asked if he had drafted his own statement to which he said he had not. The Tribunal outlined that it is for witnesses to prepare their own statements as it will be adopted as their evidence in chief. Therefore, they only accepted such evidence where it had been corroborated by oral evidence of other witnesses or documentary evidence.

On the disability discrimination argument, the Tribunal found that the hypothetical comparator would be someone who did not have a disability but that occupational health had advised that it would be harmful to continue working. The finding was that such an individual would have been medically suspended. Therefore, the treatment would have been the same, thus there was no discrimination.

On the point of reasonable adjustments, it was held by the Tribunal that the adjustment would have been to find the claimant alternative work. However, to expect this to be in place straightaway would not have been reasonable as they would have to assess whether the alternative work was safe and compliant with their duty of care to the claimant. Accordingly, the case was dismissed.

Practical Lessons

This case gives a good insight into the workings of direct discrimination and how the hypothetical comparator is used. On the face of it, the decision to suspend a worker due to their disability may seem discriminatory. However, when one delves deeper, it is clear that it related to the employer’s duty of care to their staff, and this would have included those without a disability with the same action.

A good learning point from this case is the Tribunal’s unhappiness with the fact that the respondent’s witness had not written their own witness statement. Whilst it did not affect the respondent in getting the desired outcome, it did limit the weight that was given to the evidence.
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