Garrett v Lidl Ltd
The Disability Discrimination Act (DDA)1995 requires employers to make reasonable adjustments in certain circumstances. In Garrett v Lidl Ltd, the Employment Appeal Tribunal (EAT) said there is nothing to stop employers from moving the employee to another workplace in order to comply, particularly if their contract contains a mobility clause.
Basic facts
Ms Garrett worked as a store manager for Lidl. In November 2003, she was diagnosed with fibromyalgia syndrome which caused pain, fatigue and muscle stiffness making her a disabled person for the purposes of the DDA. After a risk assessment was carried out, she was moved in early 2005 to another store which was more convenient for her.
Following further risk assessments in 2007, she asked for a number of adjustments to be made. Lidl, however, decided that although she could still do most of her job she could not carry on as a store manager. She was suspended on full pay, pending a report from occupational health. Her manager then wrote to occupational health saying she could not carry out “large parts of her job role”.
In May 2007 the company suggested she move to another store because it would be easier to make the necessary adjustments there. Ms Garrett lodged a grievance, claiming that the adjustments should be made at her existing store, but this was rejected. On 1 October, she returned to work at the new store.
Ms Garrett lodged claims of disability discrimination and harassment and argued that the requirement to move her amounted to victimisation.
Tribunal decision
The tribunal said that Lidl had imposed a provision, criterion or practice which put her at a disadvantage compared to someone who was not disabled - that is, a requirement that all members of staff had to undertake all roles within the store. It therefore had a duty to make reasonable adjustments for her under the DDA.
However, it concluded that it was not unreasonable to ask her to move because it was easier for Lidl to make adjustments at the new store - there were more staff on duty making it easier to give Ms Garrett the flexibility she needed. It was no more difficult for her to get to work in the new store and, in any event, her contract contained a mobility clause allowing Lidl to move her anywhere in the UK.
It then reasoned that, as it had rejected her claims of discrimination, her victimisation claim could not succeed. It also rejected her claim of harassment.
Ms Garrett appealed, arguing that the DDA required Lidl to make the adjustments at her existing workplace.
EAT decision
The EAT agreed with the tribunal in relation to reasonable adjustments. It said that although it made good industrial sense for employers to consider first of all whether the adjustments could be made at the existing workplace, it was not unreasonable to decide that the adjustments could best be achieved at another place of work. It made even more sense when the employee had a mobility clause in her contract and had already worked at several stores.
However, it agreed with Ms Garrett that the tribunal had been wrong to dismiss her claims of victimisation just because it had rejected her discrimination claims. The tribunal had failed to apply the correct test and had not considered whether the fact that she had lodged a grievance had influenced the decision to move her.
And the tribunal had also failed to apply the correct test in relation to her claim of harassment. That is, first, whether the letter from her manager saying she could not do “large parts of her job” and comments from the district manager could amount to unwanted conduct; second, whether in all the circumstances it could reasonably be considered to have an effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her; and third, whether the letter was written for a reason that related to her disability. Similar considerations applied to remarks made by her
The case will therefore now be remitted back to the same tribunal for fresh consideration of the victimisation and harassment claims.