Retailer discriminated against employee by insisting she work late shifts

Tribunal finds ‘breathtaking’ lack of training in management of disabled Laura Ashley worker

A home furnishings retailer discriminated against a disabled employee after refusing to make a reasonable adjustment by changing her shift pattern, a tribunal has ruled. 

The North Shields employment tribunal (ET) found retailer Laura Ashley discriminated against Avril Iles, who worked as a sales leader from February 2015 and until her resignation in August 2018, by failing to accommodate her disability. 

One of these accommodations, the tribunal heard, was to alter her working pattern and reduce the number of late shifts she worked, which she said exacerbated her disability, affecting her ability to work. 

In his judgment, employment judge Andrew Buchanan said the managers of Laura Ashley “had little, if any, meaningful training” on disabilities and their duties as managers of disabled members of staff. 

“The lack of training for an employer with 3,000 employees was breathtaking and resulted in the respondent’s managers committing grave errors in the way this disabled claimant was handled as a result of their startling ignorance of their duties,” Buchanan said.

The tribunal heard Iles worked full time at Laura Ashley’s “flagship” store in Durham. In May 2016, she received a diagnosis of osteoarthritis and was told she needed a total replacement of her right knee. Iles booked the procedure for March 2017. 

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Iles informed her manager, April Robson, that she would be absent from work after the operation for a “significant period”. After the procedure was postponed, she eventually underwent the knee replacement on 8 November 2017 and was absent from work until 5 April 2018. 

Upon her return to work, Iles met with Robson and told her she did not anticipate a recurrence of her problems, but requested adjustments so she was not required to carry out heavy lifting, and would take care on ladders and steps. 

The tribunal heard Iles continued to work a range of shifts after her return to work, including a “late shift” from 11.45am to 8.15pm on three occasions. She found at this point that her knee became swollen and painful. 

She took a picture of the swelling and showed the photograph to Robson, who responded by suggesting Iles should “apply frozen peas to her knee during breaks” and could keep peas in the freezer of the staff refrigerator. 

The tribunal found Iles was required to work an “excessive and disproportionate” number of late shifts in this period, “which was only a matter of a few days since her return to work”. 

Iles subsequently raised a grievance around her return to work arrangements, but in the outcome, Sharon Brown, regional manager for Scotland and north-east England, wrote that these late shifts were the same length as any daytime shift Iles would have to undertake.

She added: “Furthermore, working in retail, it is custom and practice for staff to work late shifts and flexibly”.

Iles continued to work late shifts and did so on 5 June. Robson was present for most of that shift, and Iles experienced difficulty with her knee, which became swollen. 

She returned to work the next day, 6 June, starting at 9am. Midway through the shift, she found her knee had swollen again. She was in considerable pain and informed Robson she was going to leave work early.

She went to sign out in the attendance book, and while she was there, the tribunal heard Robson said words to the effect of: “It’s funny you could do an early shift but not a late shift”. 

Iles perceived the remark to be sarcastic and became angry. Robson invited Iles to a nearby private office to discuss it. Iles told Robson she had not been supportive of her and requested to speak to Brown or to the company's HR department. 

Robson gave Brown’s phone number to Iles, but said HR “would not speak to her”. The tribunal heard that “in an attempt to discuss matters further with her”, Robson took hold of Iles and, for a short time, pinned her against the wall of the office. Iles pushed Robson away and left the office in tears. 

Iles raised a grievance which she sent to Brown with further information on 8 June. 

The grievance raised several matters, including that Robson had not supported Iles’ return to work after surgery; the remarks made by Robson and the physical altercation on 6 June; delays in issuing rotas; missing payslips; failure to follow up on training; and the expectation Iles would work late shifts following her surgery.

The grievance was upheld in relation to the rotas, payslips and training, but the other matters were rejected. 

In the decision, the manager dealing with the grievance wrote that following her surgery, Iles did not approach Robson to say she was struggling, so Robson “assumed that [she] didn’t need extra support".

Iles appealed the outcome, but the appeal was rejected on 9 August. It was concluded that Iles had not asked for any follow-up meetings with Robson, did not produce a Fit Note detailing any reasonable adjustments, and did not work a disproportionately high number of late shifts. 

In respect of the assault, the outcome stated: “As there were no witnesses to the incident and April’s version of events is very different to yours, I can only conclude that both yourself and April have different perceptions of what was said and what took place.”

Iles resigned on 30 August with immediate effect, citing she felt she had been discriminated against because of her disability. She also said both the grievance and the appeal hearings were “fundamentally flawed” so she only had no option but to quit. 

The ET ruled in favour of Iles, finding she had been unfairly constructively dismissed as a result of her disability, that Laura Ashley had discriminated against her by failing to make reasonable adjustments and had subjected Iles to harassment in relation to her disability.

The tribunal ordered Laura Ashley to pay Iles £18,991 in compensation for unfair dismissal. 

Sarah Armstrong, partner at Gunnercooke, said the ET's decision highlighted the importance of training staff so they can identify a disability and understand their duties as managers. 

“The managers in this case didn’t apply their minds to any question of whether they ought to make reasonable adjustments because they never contemplated that the employee might have been disabled,” Armstrong said. “This led to a successful claim for unlawful disability discrimination and constructive unfair dismissal.”

Neither Iles nor Laura Ashley could be reached for comment.