Mr Pointon, the Claimant, was employed as general manager by Alpha Omega Securities Limited. He was diagnosed with kidney cancer in 2016 and faced cancer discrimination in the workplace.
It was common practice that employees would work beyond their contractual hours. Mr Pointon’s GP signed him as fit for work (between his treatment for cancer) and said that he would benefit from a phased return to work, altered hours, amended duties and workplace adaptations. The company agreed to amend Mr Pointon’s duties with reduced hours on a phased basis and no working outside of core hours. Despite this agreement a senior manager of the company told Mr Pointon to “grow up” and asked why he thought he deserved to have every weekend off.
The Birmingham Employment Tribunal held that Mr Pointon was unfairly constructively dismissed. He was also successful in his claims for disability discrimination, failure to make reasonable adjustments and harassment as he was found to have faced cancer discrimination at work. His claim for victimisation failed.
The Tribunal noted that medical advice should have been sought by the Company to clearly ascertain the parameters of what the claimant could or could not do. As of a result of ignoring this it led to cancer discrimination in the workplace.
The owner of the company stated that he treated all of his employees the same, however Employment Judge Self noted that “when dealing with a disabled person equal treatment is often not enough and at times you have to go further in order to level the playing field by treating a disabled person more favourably”.
This is a useful reminder that the only lawful form of positive discrimination in UK law is for people with disabilities. Employers are required to do more to remove the barriers that prevent the full and effective participation of people with disabilities in the workplace. This is the essence of the reasonable adjustments duty.
You can read the full judgment here.
Cancer, HIV infection and multiple sclerosis are automatic disabilities under the Equality Act 2010. An individual with one of these conditions will be protected from discrimination from the date of diagnosis. Some serious sight impairments are also automatic disabilities but many impairments are capable of amounting to a disability if they meet the definition in section 6 of the Equality Act 2010
At didlaw we specialise in disability discrimination claims. If you feel you are being treated poorly by your employer because of your disability please speak to us, we may be able to help. You can also find some useful information on our website: https://didlaw.com/disability-discrimination-solicitors-london.
This update was written by Joanne Sinclair, Trainee, didlaw.
