More guidance on what can be reasonably expected from employers where protected characteristics intersect.
An important element of a productive and happy workplace is ensuring that your employees feel supported, protected and comfortable while at work. Increasingly, this involves flexibility to ensure all employees, or at least as many as possible, are accommodated. However, this can be a tricky line to tread for employers, particularly where accommodating one group of employees impacts on another group. The recent decision in Mr T Richardson v JD Wetherspoon plc deals exactly with this difficult balancing act and provides some useful guidance on this. It also touches upon the updated law on employees’ freedom to express their views online and in person, particularly in light of the update brought about last year by the Forstater v Centre for Global Development Europe decision.
Mr Richardson was employed by JD Wetherspoon as a Bar Associate. He described himself as ‘anti-woke’ and ‘a born again Christian’. During the annual Gay Pride Parade he told a lesbian colleague that ‘God would not forgive gay people’. He also made other complaints about Pride being ‘shoved down his throat’, initiating an investigation by the employer into his conduct. This investigation revealed other controversial posts on social media, including statements comparing Islam to Communism and Nazism. The subsequent disciplinary hearing resulted in Mr Richardson being dismissed for gross misconduct.
Mr Richardson brought various claims against the pub including unfair dismissal, disability discrimination (on the basis that he is autistic) and discrimination on the basis of religion or philosophical belief.
In relation to the disability discrimination claim, the Tribunal considered claims of direct discrimination, indirect discrimination, failure to make reasonable adjustments, and harassment but ultimately found that the dismissal was fair, stating:
“For the avoidance of doubt, telling somebody that God will forgive them, (or not) for being gay is harassment on the grounds of sexual orientation. It is unwanted conduct that can reasonably be perceived as creating the proscribed environment. The same may be said of the comment to the effect that one does not want Gay Pride rammed down one’s throat. Were an employer to fail to take action when employees have complained about being on the receiving end of such comments, they would be likely to find themselves facing sustainable complaints of discrimination on the part of the complaining employees.”
It is this aspect of the tribunal’s judgment that makes this decision interesting and there are key points made in the judgement which provide guidance as to how these interests can be balanced by employers when they intersect in workplace situations.
Failure to make Reasonable Adjustments
In relation to the claim that the Respondent failed to make reasonable adjustments, the Tribunal found that the “Equality Diversity and Inclusion Policy” the Respondent had in place did amount to a provision, criterion, or practice which put the Claimant at a disadvantage compared to an employee who is not autistic. It was determined that, as autism causes people to speak more candidly and without a filter, the Claimant would be less likely to be able to comply with the policy. It was confirmed that the Respondent knew or ought reasonably to have known that Mr Richardson was autistic, as this was disclosed at the outset of employment and discussed during the course of employment with the Respondent.
Therefore, the tribunal considered what reasonable adjustments the Respondent could have made to account for the fact Mr Richardson may be more forthright in his opinions than someone who did not have his disability. Mr Richardson proposed a list of potential adjustments the Respondent could have adopted, including:
- Allowing the Claimant to continue to post on social media as long as he included in his posts a caveat that the views expressed were his own and not that of his employer
- Discounting historical social media posts (which pre-dated employment) that were uncovered during the investigation
- Ignoring comments made by Mr Richardson as ‘he has autism and will speak candidly and tell it as it is’
- A suggestion that the Respondent should not support Gay Pride
All proposed adjustments were considered and the Tribunal found none to be practical or reasonable adjustments for the employer to make. However, the Tribunal did make some suggestions of adjustments which they did consider to be reasonable and which could potentially be used to avoid this situation arising again:
- Giving the Claimant a final warning rather than dismissing him
- Giving the Claimant a clear explanation and guidance as to why his social medial posts were unacceptance, requiring them to be removed and advising that any further posts of this kind would result in dismissal
- Giving the Claimant a clear explanation and guidance as to why his comments to colleagues were unacceptable and any repetition would result in dismissal
- Appointing a mentor to coach and support the Claimant
- Explaining (with the Claimant’s consent) to his colleagues that he is an autistic person and what this may mean for his behaviour
- Training for managers/colleagues in relation to autism
- Putting in place a neurodiversity plan in line with the Respondent’s Welcoming and Supporting Employees with Disabilities Policy
- Allowing/arranging for the Claimant to be accompanied and supported at his Disciplinary Hearing by somebody who understands his autism (e.g. a parent)
While they provided this list of potential adjustments, the tribunal were clear that the issue with any adjustments was the practicability of them and whether they were reasonable for the employer to make to remove the disadvantage to which Mr Richardson’s disability put him. They noted the severity of the incident had caused a breakdown in the working relationship between the Claimant and his colleagues. Specifically considering the Respondent’s area of work, and the jovial, social atmosphere critical to its commercial success, the Tribunal determined it would have been impracticable for the Claimant to return to work with his colleagues and expect there to be an appropriate working environment. The Tribunal therefore rejected their own suggested adjustments in relation to the Claimant returning to work after the disciplinary hearing as not being reasonable.
Considering the remainder of the adjustments regarding the disciplinary process itself, the Tribunal noted that while they may have been reasonable and welcomed by the Claimant, they would not have done anything to remedy the substantive issue of the breakdown in relationship between the Claimant and his colleagues and on that basis were not practicable.
The Tribunal’s consideration of the claim of indirect discrimination is also of note. The tribunal had already confirmed that the “Equality Diversity and Inclusion Policy”, and the “Social Media Policy” meet the definition of practice, criterion or provision. Similar to the findings in relation to the failure to make reasonable adjustments claim, it was accepted that this practice, criterion or provision puts a person with autism at a disadvantage the disadvantage being that such people are less likely to be able to meet the requirements of such policies because they simply tell it as it is.
However, the Tribunal concluded that the provision, criterion or practice was a proportionate means of achieving the legitimate aim of ensuring an appropriate work environment for their staff where they will not be offended, discriminated against or harassed because of a protected characteristic. The tribunal also found that the policies would ensure alleged breaches of the Equality Act 2010 by employees are the subject of disciplinary proceedings and that all staff have confidence the Respondent will provide a work place at which discrimination of offensive conduct is prohibited.
The fact that Mr Richardson’s views as expressed were offensive to those who had a different protected characteristic (sexual orientation) is inevitably a factor that tribunal will consider when deciding whether a PCP can be objectively justified.
What can we take from this decision?
This judgement has at its heart the conflict between two protected characteristics – one effectively being the defence to an infringement of the other. Situations like this highlight the importance of having a clear, fair process when it comes to a disciplinary procedure, supported by widely circulated policies which guide both staff behaviour and managers tasked with policing employee conduct.
Although the claims in question were in relation to disability discrimination, the employer’s authority to act in relation to controversial or offensive comments made in person and online was considered in detail. While it may be considered that social media posts made prior to employment commencing are not the concern of the current employer, this case shows when and why this may not always be the case. The Tribunal specifically states that it is not reasonable to expect the Respondent to ignore historic social media posts or allow the Claimant to post even with the caveat that the views are his own and not representative of the views of his employer because of the detrimental effect this could have on the employer’s reputation by association.
This case also highlights that employers need to stick to the policies that they have in place. The Tribunal specifically noted that the Employer had in place a “Welcoming and Supporting Employees with Disabilities Policy” which stated that standard practice was to prepare and put in place a neurodiversity plan for employees who required this. The Tribunal noted that this was not done but would have been a reasonable adjustment for Mr Richardson (the difficulty in the Claimant’s claim was that he did not argue that there was a failure to make reasonable adjustments from the outset of employment; but only once the disciplinary process had begun). However, it does indicate that in more marginal decisions, failure to follow procedures as set out in policies and handbooks could result in an adverse ruling for employers.
For more on Social Media Policies, the right to manifest views, and when Employers can/should step in, please see myself and Ciaran’s previous blogs: