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Disabled shop worker awarded £9K after employer asked her to clock out to use toilet

23 Feb 2018 By Marianne Calnan

Company failed to comply with duty to make reasonable adjustments, tribunal rules

A disabled shop assistant subjected to disability discrimination over the use of a toilet has been awarded £9,315.07 by an employment tribunal.

Miss St Hilaire, who was born with hip defects, was asked to clock out to use a disabled toilet outside the working premises by her employer Home Bargains, Leeds Employment Tribunal heard on 31 January and 1 February 2018. 

In the tribunal’s judgment, published on 12 February 2018, Judge Keevash said she was treated unfavourably because of her disability.

St Hilaire worked at Home Bargains’ Huddersfield store from 15 May 2007 until 8 June 2017. 

Because of hip problems that have left her with significant mobility problems, some of her responsibilities, such as stacking shelves, caused her pain. Before May 2007 she had two hip replacements, as well as three further operations since then.   

She was unable 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. 

On 23 November 2007, St Hilaire attended a welfare meeting conducted by then area manager Ms Wakefield, in which she told the company she was “classed disabled”. She said that during her job interview she discussed her inability to lift and carry, and only later was she asked to do further duties, including pulling cages out of the lift. 

Following a period of sickness absence because of her hip problems, she was told that, when she was ready to return to work, the company “will establish exactly what you can and cannot do, and where possible make any necessary adjustments to return you to work successfully”.

Around March 2008, St Hilaire was asked by Wakefield 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.

St Hilaire was absent from work around July 2015 because she was having and recovering from a hip replacement. On 11 January 2016, her GP signed a fit note that advised she was fit to return to work if she had “light duties” and “avoided bending”.

She returned the following day without having a return to work meeting, and was informed by assistant manager Kirsty Louise Downey that she had to clock in and out when using the toilet. 

St Hilaire then discovered that Home Bargains had made deductions from her pay in respect of when she clocked out to use the toilet. 

She began another period of sickness absence on 23 February 2016, and raised a complaint about having to clock out and the deduction from her wages by letter on 14 March 2016. 

A 30 March company letter to her apologised for the delay in responding to the complaint and explained that she would be invited to a meeting to discuss her grievance and ongoing sickness absence. 

A meeting to discuss St Hilaire’s sickness absence and grievance took place on 30 June 2016, and was held by then area manager Mr Edwards. Notes from the meeting confirmed that he would speak to the HR department about the issues and arrange another meeting with her. 

On 28 March 2017 St Hilaire met Mr Daly, area manager, and on 6 June he wrote to her to inform her of the grievance outcome. Among other matters, he said he would arrange to pay her for the three hours’ work she had lost by clocking out to visit the toilet.

In the letter, he also said: “I am aware that your most recent fit note is due to expire on 8 June 2017 and during our meeting I asked you to discuss with your GP that the company is willing to offer support as you stated that the GP was agreeable to you returning to work earlier if appropriate support was in place.”

Daly confirmed that a “phased return” could be agreed on reduced hours and/or amended duties: “With this in mind I propose that you contact me within the next week in order to agree a mutually convenient date and time for us to meet to discuss a structured plan for your return to work.”

After receipt of this letter, St Hilaire did not contact Daly. The company did not contact her.

She brought a disability discrimination case at the tribunal on 24 August 2017. 

Allowing her claim, Keevash confirmed that St Hilaire was considered disabled within the definition in the Equality Act 2010, and was treated unfavourably because of her disability.

On St Hilaire’s complaint of Home Bargains failing to comply with its duty to make adjustments by not allocating her a sedentary role, Keevash said it had a provision, criterion or practice (PCP) where those it employed as sales assistants were required to stand, walk around, negotiate stairs and lift and carry stock. 

It decided that the PCP did place the claimant at a substantial disadvantage when compared with others who were not disabled. When undertaking some of the additional duties, she experienced pain that was clearly a substantial disadvantage. 

Although she carried out the additional duties for about eight years without complaint, the company should reasonably have been expected to know that the PCP was likely to place her at a substantial disadvantage.

Keevash noted that Home Bargains had failed to ascertain what her GP meant in terms of ‘light duties’, and said there was no evidence that a return to work discussion had happened. 

St Hilaire succeeded in her claim that the company discriminated against her when it required her to clock out and clock in when she used the external toilet. The judge found that she was treated unfavourably and put at a substantial disadvantage compared to other employees. She was treated differently from other employees who left the store for reasons other than the need to go to the toilet. 

He rejected Home Bargains’ submission that St Hilaire needed to clock out to use the toilet so that it could track who was on the premises when conducting fire evacuation procedures. Clocking in, he said, was not a proportionate means of achieving that aim. This was unfavourable treatment.

Deducting her pay from the clocked-out periods was held to be discriminatory arising from her disability. 

St Hilaire was awarded £9,315.07, comprised of £8,000 for injury to feelings and £1,315.07 as interest. Keevash left the parties to resolve issues of a £12 wage deduction, with a remedy hearing if required. 

Marsha Thompson, lawyer in Slater and Gordon’s employment team, told People Management that the onus was on Home Bargains to consult with 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.

Home Bargains had not responded to People Management’s request for comment by press time.

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