Constructive dismissal and disability discrimination successful when overtime given to another employee on the basis that he was seen as being more flexible compared to the claimant who could not work certain shifts due to her disability.

The claimant was employed as a Customer Service Manager from December 2016.  She has Conns Syndrome and it was agreed that she is a disabled person.  She was working for 30 hours per week but went on sick leave in December 2021.  The GP provided a fit note stating that when the claimant was fit to return to work adjustments should be made including working in the afternoon or evening.  The claimant sent an email on 26th December 2021 complaining about a reduction of hours to 17 per week.

The claimant sent another email citing discrimination on the basis that other employees were able to receive overtime, and she could not. She relied upon a comparator called Tejas in the Chancery Lane store who was working on a 20-hour contract, but those hours were increased to 30 hours per week even though the claimant was seeking the same.  The claimant went off on sick leave in August 2022 and then resigned in November 2022. The claimant brought a claim for disability discrimination and constructive dismissal.

The respondent argued that Tejas was not the appropriate comparator as he was not on a 17-hour contract and he was more flexible than the claimant.  However, at first instance, the Tribunal found that there was no need for flexibility for the additional hours.  Tejas was still working afternoons and evenings especially Tuesdays and Fridays which was similar to what the claimant was seeking. As a result, the Tribunal found that Tejas was the appropriate comparator. The claimant was not offered additional contract hours.  The Tribunal concluded that the requirements of flexibility for the business case to increase hours at the two stores was not defined by the respondents and the claimant had been pressing for it. Tejas was just given these hours and this demonstrates a difference in treatment and less favourable treatment for the claimant. There was no reasonable explanation as to why they hours were not offered out across the staff who were seeking additional hours. As a result, the Tribunal found that the claimant had been discriminated against on the grounds of disability and that was the reason for her resignation.

The respondent appealed to the EAT. They raised issues with the comparator such as the fact that Tejas was not in place when the issues with the claimant previously had arisen.  However, the EAT found that this argument was on a false premise.  It is not necessary to consider the timeframe for comparison. The respondent also argued that the claimant had affirmed her contract before resigning. This was because she knew Tejas was working 30 hours per week in July 2022 but only resigned in November 2022. However, the EAT outlined that the claimant had commenced conciliation in August 2022, brought her claim in October 2022 and resigned in November 2022 when she was still off work sick.  This did not demonstrate that she had affirmed her contract.  Therefore, the appeal was dismissed.

The provision of overtime can be an issue which employers need to ensure is dealt with appropriately and reasonably.  In this situation, the claimant sought overtime, yet it was just given to another employee based upon the perception that the other employee was more flexible.  Whilst that may have been the case it was not a real relevant factor considering that the overtime was settled and fell within the hours that the claimant could take on.  This meant there was less favourable treatment on the basis of disability. As a result, employers should be aware of how overtime is offered and given out to ensure that it is done fairly.

You can read the case in full here.