Deborah Scales, solicitor at Cartwright King, explains what the highly publicised discrimination case means for your business.
A tribunal recently found that Starbucks had discriminated against dyslexic employee Meseret Kumulchew because she made mistakes due to her difficulties with reading, writing and telling the time. As a supervisor she was responsible for taking fridge temperatures and recording the results. Starbucks accused her falsifying documents and demoted her because she mistakenly entered the wrong information.
When this story was covered by the national media it provoked a slew of on-line comment from disgruntled non-disabled employees: “So, if I can’t do my job properly can I claim discrimination too?”
What, then, should businesses do to ensure that all employees are treated fairly and lawfully? Disability discrimination is a vast and complex topic. Here is a brief outline of some key provisions in the Equality Act 2010 (EqA):
Knowledge of your employee’s disability.
Some employees won’t want to tell you about their disability and that is their right (except in limited circumstances). Your potential duties and liabilities towards disabled employees only apply once you know “or reasonably ought to know” your employee is disabled
What is a disability?
Discrimination law defines a disability as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Dyslexia will often fall under this definition.
When does the duty to make reasonable adjustments bite?
It is wrong to assume that once you know your employee is disabled your business has an automatic duty to make reasonable adjustments for them. The duty only kicks in if they are placed at a “substantial disadvantage” compared with employees who are not disabled, or who don’t share the same disability. In Meseret Kumulchew’s case her dyslexia put her at a substantial disadvantage compared with employees who could read and write more easily.
What sort of adjustments are “reasonable” and on whose say so?
It is ultimately up to an employment tribunal to decide whether a particular adjustment would have been reasonable to make in the circumstances. It will take into account matters such as whether the adjustment would have helped the disabled employee overcome the particular disadvantage, the cost of the adjustment compared with the employer’s financial resources, and the disruption or effect that the adjustment would have had on the employer’s activities.
In Ms Kumulchew’s case the Tribunal decided that the extra time, support and visual type training she needed until she became more adept at taking the temperate readings, were adjustments Starbucks should have made. As so often in English law the key word is “reasonable”. Recommendations from Occupational Health will often help.
Discrimination arising from a disability, S15 EqA
This clause from S15 of the EqA may be less familiar to employers. Making mistakes when completing forms was “something that arose from” Ms Kumulchew’s disability. Employers can escape liability for S15 if they can prove the treatment of the employee was a “proportionate means of achieving a legitimate aim”.
Ensuing that fridge temperatures are recorded accurately could be a “legitimate aim” but Starbucks clearly failed to persuade the tribunal that accusing Ms Kumulchew of falsifying documents and demoting her was fair or proportionate.
How much compensation will Starbucks be ordered to pay?
We’ll probably never know. Starbucks are likely to offer a confidential settlement. “Injury to feelings” compensation for discrimination starts at £660 and climbs to £33,300 plus interest in the most serious cases. Compensation for loss of earnings can also be awarded.