Vodafone shamed on disability discrimination

Telecoms & Financial Services May 31 2016

An Employment Appeal Tribunal judge has upheld the devastating finding of a previous Employment Tribunal (ET) that Vodafone stands guilty of serious disability discrimination charges in the case of a CWU member who was dismissed by the company in 2014 after nearly five years of disgraceful mistreatment.

Midlands No.1 branch member Andrew Winfield, who had been a highly successful Sales Advisor at Vodafone’s Stoke-on-Trent site since 1999, first ran into problems in August 2009 when the company suddenly took him off fixed shifts that he’d previously worked to help manage his Type 2 Diabetes.

Prior to the shift change he was performing well and earning a high level of commission above his basic pay – but as soon as his new flexible’ shifts were introduced – shifts that varied not just from week to week but sometimes from day to day – things started to go seriously wrong.

CWU employment law panellist Mick Lynch, who represented Andrew at his successfulET in 2014 and the Remedy Hearing that followed, explains: “Andrew had suffered an increasing number of hypoglaecemic attacks which gradually impacted on his ability to meet his performance targets or achieve the same levels of commission. As a consequence, Vodafone began to discipline him.

“Despite regular requests by Andrew, over several years, to revert to some form of fixed shifts, Vodafone insisted he continue in flexible shifts and he began to suffer increasingly from stress and anxiety.

“Medical reports and even Vodafone’s own OHS advice supported Andrew’s claim for fixed shifts and a reduction in his targets to take account of his condition – but still Vodafone refused to budge.”

By 2012 Andrew had reached rock bottom and, after going sick with stress, was diagnosed with depression. He submitted a grievance that Vodafone dragged out for months, and then rejected.

In desperation, he submitted an ET claim in November 2012 on the basis that Vodafone had failed to make reasonable adjustments with regards to his disability – though that claim was put on hold for a period when Andrew returned to work having finally been offered a fixed shift pattern – a full three years after the need for one was first identified.

There was still no reduction in his targets, however, and Andrew’s condition continued to deteriorate – with him developing retinopathy, a problem with vision associated with his diabetes.

OHS advice was that a larger monitor might help and that consideration should be given to reducing his targets, but disciplinary action continued and, just six days after he was finally supplied with a larger monitor, Andrew was dismissed in October 2014 – triggering the lodging of his second ET claim for disability discrimination and unfair dismissal.

Following a five-day hearing – during which Andrew was represented throughout by the CWU – the ET judgment was that Vodafone had spectacularly failed in its legal duty to make reasonable adjustments for Andrew going back to August 2009. It found that no reasonable employer would have dismissed Andrew having failed to deliver the reasonable adjustments it was under a legal duty to provide.

Vodafone was ordered to pay a five-figure sum in compensation to Andrew, covering loss of earnings, loss of commission opportunities, injury to feelings with regard to his disability and damages for personal injury with regards to the impact the employer’s actions had on his condition, causing him unnecessary stress and anxiety.

Yet, even then, Vodafone refused to accept it had done anything wrong. It appealedagainst the judgment causing a further period of stress and anxiety for Andrew. However,at last month’s Employment Appeal Tribunal (EAT), at which the CWU provided a barrister to support Andrew, the original ET decision was upheld. The compensation award now includes interest to cover the period between the first ET and the appeal hearing.

The ruling represents not just the total vindication of Andrew’s claim of disability discrimination and unfair dismissal but a triumph for the union’s legal services department, branch secretary Ali Moosa, other Midland No.1 reps who supported Andrew and his partner Mel throughout their ordeal.

Mick Lynch explains: “A major global employer has very convincingly been found wanting, with the Appeal Tribunal concurring with the original ET judgment that no reasonable employer would have dismissed an employee in these circumstances.

“One of the most striking things about this case was that several managers presented by Vodafone admitted they had received no training in disability issues or how to handle disabled employees.

“One manager said he had attended an away day’ during which he thought he had received some training with regards to the Equality Act 2010. When asked by the Tribunal what he remembered from that day he replied that he could not remember the details, but that he did remember having a very good lunch!’ That must suggest a very serious failing on Vodafone’s part.”

Mick added: “You’d like to hope that Vodafone will seriously reflect on this judgment and on the many failings the ET highlighted -though I have to say the way the company persisted in fighting this case right to the bitter end does notgive muchcause for hope.”

Above everything, however, Mick stressed that Andrew’s success in this case sends out an unmistakable message to other employees about the importance of trade union membership and the fact that, where disability discrimination clearly occurs, victims have the weight of the law on their side, however much gung-ho managers think otherwise, and members should not be afraid to assert their rights.

“Despite Vodafone dragging my complaint out for several years, my wife and I are happy with the result and would like to thank all those involved and the CWU for their support in bringing this case to its excellent conclusion.” – Andrew Winfield