A retailer has been told by a tribunal to bring in new EDI training after an MoT tester with cerebral palsy had to make his own changes at work because the company did not make reasonable adjustments.
The tribunal ruled that Halfords discriminated against Mr P Withers on the grounds of his disability over an 18-month period, awarding him £24,200.
The Bury St Edmunds tribunal heard that Withers – who has cerebral palsy that affects his left side – was discriminated against after his condition “deteriorated” and he took a number of periods of sick leave.
It prompted Halfords to initiate a series of risk assessments with the goal of putting in place reasonable adjustments to assist him in his work and to mitigate the effects of his condition.
However, the tribunal determined that he was forced to use his own “working methods” and tactics to “satisfactorily” accomplish his job, as Halfords failed to implement the reasonable changes.
The tribunal heard that Withers was employed as an MoT tester (grade 3) at Halfords Autocentre in Milton Keynes from 17 October 2019 until his resignation on 25 November 2021.
It outlined that when Withers was interviewed for his post, he admitted that he had cerebral palsy and that, as a result, he struggled with some activities such as changing tyres.
The tribunal also heard that his condition affected his left side, producing weakness in his leg and arm and limiting his ability to handle heavy products, and that his condition qualified as a “disability” under the Equality Act, which Halfords did not dispute.
The tribunal heard that the first four months of Withers' employment went well but, in February 2020, as a result of his condition, his hip became "inflamed" and his ankle bones rubbed, making it "painful" for him to weight-bear, and he later began to use a crutch to relieve the pain.
However, Withers' condition worsened, prompting his employer to conduct a series of risk assessments in order to make some reasonable adjustments to assist Withers in his job and reduce the impact of his condition.
As a result of the pain, Withers missed several days of work and took additional time off to attend medical appointments.
On 20 August 2020, Withers had to go to hospital because of increased pain and bruising on his thigh. He was told he would be referred for an MRI as well as physiotherapy. Stuart George, his manager at the time, was notified via text message.
On 22 and 23 December, Withers suffered from acid reflux from the pain medication he was taking and he took a seven-day sick leave commencing on 29 December as a result of hospitalisation for a muscular spasm in his back.
On 12 November 2020 a first assessment was conducted when it became clear that Withers was using a crutch. The tribunal heard that the only adjustments that had been implemented to mitigate his disability were “improvised” and only “sporadically” used.
The tribunal heard that to reduce the length of time Withers spent standing still, which caused him pain, he took a stool from the tea room and used it at his MoT workstation.
Other measures, such as blocking out time in the diary for lunch breaks and blocking out the last slot of the day to ensure Withers had "sufficient" time to take breaks and complete his workload for the day, the tribunal found, were "rarely if ever happening and certainly not with any degree of consistency at this point".
The tribunal noted that the decision was made in the risk assessment documents under the heading "further action to be taken to reduce risks" by RGM (Gary Hall) and SM (George) to find and provide Withers with a more suitable chair for his use rather than the improvised and "uncomfortable" stool he was using at the time.
It added that Halfords was to direct MoT customers to park in the MoT-designated car park at the back of the building, since doing so “would lessen the amount of walking” Withers had to do.
However, Hall testified that this was difficult to do in practice because of the usage of a shared car park facility and the fact that many of these locations' clients scheduled their MoTs online at short notice and could not be told of the parking facility.
The tribunal found this to be a "poor and unsatisfactory" explanation, adding that "greater effort" could have been made to implement this "modest and yet potentially extremely helpful adjustment".
It said that, once again, when it came to "alleviating his pain and suffering", Withers had to improvise a solution by driving to and from the car park to collect cars for testing rather than being supported by his employer.
Record of improvement
On 14 January 2021, George, the site manager at the time, issued Withers a record of improvement. It stated: "A coordinated effort to ensure your attendance is 100 per cent moving forward. By doing this it will lessen the impact on colleagues having to cover your absence, meaning extra workload and stress.”
If adjustments were not made, it was further stated under the title "next steps" that "if there is a fourth incident, an absence meeting will be held to discuss further action".
Speaking on the document, Withers said: “When George gave me the letter of improvement, he made it sound like if I had one more time off they would look at getting rid of me,” adding that the way he was spoken to about it made him think that it was part of a “disciplinary”.
On 12 March 2021, Withers did not receive the chair mentioned on the first risk assessment on 14 November 2020. He contacted Hall to check about the whereabouts of it and received the response: “Just chased.”
However, the tribunal determined that there was another delay, which resulted in Withers sending Hall a chaser text message on 9 April. Hall responded: “Hi, they’ve come back to me saying there aren’t many proper chair options that are suitable height, mainly bar stool types. I’ve asked for a few examples which I’ll send to you to have a look at.”
However, the tribunal discovered that Withers never got such examples, despite receiving his chair on 7 May, roughly six months after the initial risk assessment revealed the necessity.
On 27 May, Stuart Benton conducted a second risk assessment, which he characterised as a "review" because it highlighted that Withers now had a "better" chair. However, Withers reported having difficulty performing MoTs on low-slung sports cars and commercial vehicles because of the requirement to climb up into the cab using a step.
In the final section of the form, under the heading ‘other relevant information’, the following was recorded: “We spoke about the inability of Withers to carry out MoT tests on certain vehicles and how this could become detrimental to the business.”
It continued: “We talked about his job role and the implications of not being able to carry it out fully. Withers was open and honest throughout and agreed that if he worsened we would need to maybe look at other options for him moving forward.”
The tribunal noted that Withers found Benton's claim that his inability to conduct MoT tests on some types of vehicles may be "detrimental" to the company “threatening”.
On 23 June 2021, Withers was questioned by Benton over his alleged inability to notice a missing wheel bolt during an MoT test. The mistake allowed Withers to pass a car that should have failed its test.
On 14 July, he received an invitation to a disciplinary hearing. The tribunal also learned that he was suspended from work pending the disciplinary.
When pressed to explain why he made the mistake regarding the wheel bolt, Withers reportedly responded: "I'm not sure; it might be that I took a phone call from my doctor about cancer tests and it might have thrown me off a bit."
In his evidence, Withers also believed that his mistake at work had been treated with “disproportionate severity” when compared to other colleagues and that this gave him the impression of being “targeted”.
On 3 August, Withers contacted Halfords’ employee relations representative and let her know he had reported the company to Acas for discrimination because the risk assessments had not been carried out, in his opinion.
He also told her that every time he tried to raise his issues with Hall, he felt like Hall did not take him “seriously”.
On 4 November, Withers handed in his resignation letter. His last day of employment was 25 November, with the tribunal stating that Withers had been “justifiably unhappy” with the way he had been treated by Halfords for a while.
Withers' claims of disability discrimination were upheld and he was awarded £24,199.45 for injury to feelings, as well as his claim that Halfords failed to make reasonable adjustments.
Employment judge’s comments
The panel determined that the discrimination occurred over a period of around 18 months and hence could not “possibly be regarded as isolated incidents”.
According to employment judge Conley there were discriminatory acts that “persisted” despite “repeated assurances” that the issues raised would be addressed, and Halfords’ refusal to do so had a “clear impact” on Withers.
Conley added that in determining the level of Withers’ injury to feelings, he was “resilient” and had to “get by the best he could” despite Halfords’ failure to put measures in place to support him.
Conley said the extent of Wither’s injury to feelings was demonstrated by his being made to feel “insecure” and “anxious” about the amount of sick time he was taking, which was directly related to his disability.
The tribunal also suggested that Halfords implement new equality, diversity and inclusion training, finding that there was a “considerable” demand for training and a greater need for training at management level than for new starters.
Judge Conley said: "We were concerned about the complacency that appeared to exist among management with the issues at the heart of this case, and the fact that many of the attitudes that led to the discriminatory acts here sadly appeared to us to persist at the time of the hearing.”
Employment lawyer’s reaction
Alan Lewis, partner at Constantine Law, said: “Employers should be careful not to place too much weight upon complaints by other employees that a disabled employee is not carrying their fair share of workload.”
As a result, employers should instead focus on what “reasonable steps” they can take to help the disabled individual perform the activities that they were employed for, he said.
“If the employer informs the employee that it is prepared to make certain adjustments to work arrangements then it should not unreasonably delay in doing so,” said Lewis, adding that, in this case, the employer delayed implementing “promised risk assessments” for many months, and the tribunal was significantly influenced by that conduct.
A Halfords spokesperson said: “While we respect the decision of the tribunal, we are disappointed with the outcome. We remain committed to being a fair employer for all staff.”
Withers could not be reached.