Summary Description: 

Failure to make reasonable adjustments when wellness and disciplinary meetings were rescheduled to a time when the claimant’s Advocacy Support Worker was not available.

Background: 

The claimant worked for the respondent as a Customer Assistant from 1st August 2013.  The claimant is a disabled person by reason of Autism, Dyspraxia and Anxiety.  The employment was without incident until 2018 when the claimant had difficulties with a colleague and made complaints of bullying.  The complaint was not upheld but it was agreed that an ‘adjustment passport’ should be completed to support the claimant. 

As part of the review into the claimant’s work it was found that as a result of the dyspraxia the claimant had to work as twice as hard as an average colleague. A range of measures were put in place about how changes should be explained.  

An issue arose in 2020 with the same colleague as in 2018.  The claimant was called into a meeting about reacting inappropriately to that colleague.  That investigation found no inappropriate behaviour on the claimant’s part but found that the adjustment had not been followed (about communication with the claimant).  It was found that the Store Manager should communicate with colleagues to advise them of the adjustment.  A document was circulated to all staff regarding the claimant and communications with the claimant.  

A new store manager came into place in 2021.  He was aware of the adjustment passport but did not discuss it with the claimant.  A complaint was made about the claimant raising his voice on the telephone during his break.  The claimant asked for a witness to be present in the meeting with his line manager but this was refused.  The claimant telephoned the emergency services stating he was being bullied and that he was having a panic attack.  The claimant actually left the store before the ambulance arrived.  The claimant was then suspended from his employment pending investigation. During the investigation and a wellness meeting the line manager stated his adjustment passport was no longer workable and that he may need to be transferred.  The claimant could have returned to work following this but remained on long-term sickness absence.  

Subsequent wellness meetings were scheduled and the claimant wanted his Advocacy Support Worker to attend.  The Support Worker did not work on Saturday (when the meeting was scheduled) and despite this the claimant was told that he should still attend and if he did not it would be held in his absence.  A subsequent meeting was scheduled for a time when the Support Worker could attend but rescheduled to a point at which they could not attend.  Again this was held in the claimant’s absence as a result. This led to a grievance relating to the failure to make reasonable adjustments and a claim then being brought to the Employment Tribunal.  The grievance was not upheld. 

Outcome: 

The main issue arising was whether there was a failure to make reasonable adjustments.  The Tribunal had to determine whether the auxiliary aid, the provision of an Advocacy Support Worker prevented the claimant from being placed at a substantial disadvantage in comparison to employees who were not disabled.  The Tribunal noted that the Advocacy Support Worker was aware of his disabilities and would allow for the meeting to be conducted in a manner which was fair to the claimant.  Indeed, it would have allowed him to explain himself better and also explain the impact of his disabilities which was part of the investigation.  The Tribunal did acknowledge that some steps were taken to allow the Support Worker to attend however it was found that there was an overall failure to take reasonable steps.  This was especially in light of the meeting that was rescheduled when the employer was aware that the Support Worker was not available for the rescheduled date. Whilst the grievance was not upheld, the findings did state that the line manager could have contacted the Support Worker directly to ascertain availability – a point agreed with by the Tribunal.  Accordingly, it was found that the respondent failed to make reasonable adjustments for the claimant.  

Practical Guidance for Employers: 

One of the most frequent questions at training events with HR professionals regarding disability discrimination is what is meant by reasonable when it comes to reasonable adjustments.   This case provides some insight stating that it was unreasonable to reschedule the meeting for a time when the respondent was aware that the Advocacy Support Worker was not available.   It is not that the meetings could not be held at all but that this would have been reasonable in the circumstances and bearing in mind the importance in allowing the claimant to make representations during the process.  

The full case can be viewed here:
https://assets.publishing.service.gov.uk/media/660ea2d163b7f80011de18a0/8000251.2023_-_Maxwell_V_Tesco_Stores_Limited_-_Judgment.pdf