Employee victimised after failure to offer him further work because of perceived risk of discrimination claim (Crossland v Chamberlains Security (Cardiff) Limited)

In the case of Crossland v Chamberlains Security (Cardiff) Limited ET/1600344/2015 the Employment Tribunal held that Mr Crossland, the Claimant, had been subjected to disability discrimination and victimised by his previous employer, Chamberlains Security (Cardiff) Limited (the Respondent).

The facts in Crossland v Chamberlains Security (Cardiff) Limited

Mr Crossland was diagnosed with type 1 diabetes in 1990 – without regular injections of insulin his condition would result in death within a very short time.

Mr Crossland commenced employment with Chamberlains Security (Cardiff) Limited (“Chamberlains”), a family-run security company, on 29 July 2014. He was assigned to a new contract that Chamberlains had taken on: providing security services at the Llandegfedd Reservoir in Pontypool via a contract with Dwr Cymru Welsh Water. The reservoir, as is common, was a large body of open water. The purpose of the contract was for the security company to deter and report incidents of unauthorised swimming, boat use, and other water-related incidents. There was no CCTV at the sites, so security guards would patrol the reservoir by foot and car, checking in by telephone with Chamberlain’s control room every hour. If a security guard could not be contacted the duty manager would make a personal call to the relevant guard and, if there was no further response, attend the reservoir. Mr Crossland was assigned to work at the reservoir.

On 21 August 2014 Mr Crossland sent personal information relating to his identity to Chamberlain’s information email account. The email contained a copy of his passport, as well as a letter indicting he had an outplacement appointment at a diabetic centre on 25 September 2014. Mr Trevivian, a director of Chamberlains, did not see this email.

On the morning of 10 October 2014 Mr Crossland had a hypoglycemic episode due to low blood sugar. This occurred while Mr Crossland was sitting in his car at the reservoir, waiting to be relieved from duty by the site contractor. He fell into a sleep and was woken by a knock on the window by the contractor; he was in a ‘reduced intellectual state’, started ‘dancing’ when patting his pockets looking for keys, and was disorientated and unresponsive. He informed Mr Trevivian later that day that he was diabetic, and that he had not informed Mr Trevivian of his diabetes previously because he was concerned that this may have affected his chances of being employed.

The site contractor subsequently submitted an incident report to Welsh Water, listing under “immediate actions for the short term” that there would be discussions with Chamberlain Security to replace the security guard, and that stated (incorrectly) that Mr Crossland had not managed his condition. This report was not shown to Chamberlains until some time later. Mr Trevivian also undertook a risk assessment of the incident on 11 October 2014, drawing his understanding of Mr Crossland’s disability from a Google search, and concluded that adjustments would not work and the site could not be made safe for Mr Crossland. He noted that a front of house position or employment on a multi-site office would be preferable for Mr Crossland. Mr Trevivian did not consult Mr Crossland’s GP or obtain an occupational health report.

On 13 October 2014 Mr Trevivian met with Mr Crossland and informed him that he could not be offered further work at the reservoir, that he would look for suitable alternative work for him, and discussed a number of other possibilities (including other sites and work with other security companies). On 21 October 2014 Mr Trevivian updated Mr Crossland, informing him that he had not been able to find suitable work for him. There was also a discussion regarding whether Mr Crossland’s P45 should be sent to him, although there was a dispute as to who suggested this.

Mr Crossland subsequently submitted a grievance on 5 November 2014, complaining that he had received his P45 and asking why he had been dismissed. He did not complain of discrimination at this point.

A grievance meeting was held on 16 December 2014. Reasonable adjustments were discussed, and Mr Trevivian informed Mr Crossland that he could not have moved Mr Crossland to another site as this would have meant moving another employee. They also discussed that Mr Trevivian had not sought an occupational health report or consulted with Mr Crossland’s doctor. Mr Trevivian also confirmed that he had never had any issue with Mr Crossland’s timekeeping, attendance or appearance.

Mr Trevivian sent a grievance outcome to Mr Crossland on 22 December 2014. Mr Trevivian commented that he would offer Mr Crossland a suitable position if it became available, but that it would probably be unlikely that he would be able to offer Mr Crossland an alternative position prior to 25 January 2015 (a deadline set by Mr Crossland) as January was a “quiet month” for the business. Mr Crossland was not offered a right of appeal.

Mr Trevivian subsequently found, through research on the internet, that Mr Crossland was a serial litigator (including previous Employment Tribunal claims for discrimination, as well as a libel claim). He therefore decided that he would not in fact re-engage Mr Crossland, as he was concerned of the risk of future litigation by him (he didn’t inform Mr Crossland of this).

On 13 February 2015 Mr Crossland submitted an Employment Tribunal claim complaining of disability discrimination (including claims for discrimination arising from disability, failure to make reasonable adjustments, and victimisation).

The decision of the Employment Tribunal in Crossland v Chamberlains Security (Cardiff) Limited

The Employment Tribunal concluded that Chamberlains had failed to make reasonable adjustments for Mr Crossland by moving him to another site – the company employed about 50 security guards and had a turnover of approx 15 employees per year, and therefore concluded that it would not have been difficult for Mr Crossland’s job to be swapped with another employee’s.

The Employment Tribunal also held in Mr Crossland’s favour in respect of his claim arising for discrimination arising from disability. Chamberlain’s had conceded that Mr Crossland had been subjected to a detriment (the failure to offer him further  work) for a reason arising from his disability (the diabetes), and the Tribunal concluded that a more proportionate response than dismissal in the circumstances would have been swapping Mr Crossland’s position with that of another security guard.

The Tribunal also upheld Mr Crossland’s victimisation claim, holding that one of the reasons for Mr Crossland not being offered any future employment was the fact that he anticipated that Mr Crossland might pursue a discrimination claim against his business.

Our solicitors’ view on Crossland v Chamberlains Security (Cardiff) Limited

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that employers must be extremely careful, when dealing with employees who have disabilities, to consider what adjustments could be made to the relevant employee’s position in order to reduce any disadvantage caused. Further, employers should be careful to ensure that they do not dismiss employees (or subject them to any other form of detriment) because of the risk of a discrimination claim by the employee in the future.”

The judgment of the Employment Tribunal can be found here