A recent decision of the Employment Tribunal (ET) serves as a crucial reminder to employers about the high legal standards for justifying discriminatory treatment against disabled staff, particularly concerning part-time work and pay disputes.
Facts:
Ms. Constantine had been a veterinary surgeon employed by Blackwater Valley Veterinary Centres Ltd. since 2017. Initially, she worked every day with two half days, but this later changed in 2017 to four full days and a weekend every three weeks. Further, she was required to seek permission to be absent on the days she was not required to attend work.
The claimant started a period of sickness absence in November 2020 due to burnout. She was certified unfit to work from 1 December 2020 to 4 January 2021 owing to her state of anxiety. In May, a ‘fit for work’ statement recommended one day a week. In June 2021, there was a reference to an increase to one and a half days a week, with at least one day off in between workdays. On 15 September 2021, she reported to her GP that she felt fatigued and unable to perform surgery "when like this".
Following a meeting on 22 June 2022, the respondent agreed to look into issuing a new contract for a three-and-a-half-day week with two in six weekends. A proposed contract with a covering letter dated 24 August 2022 was sent to the claimant with a £23,267.40 gross salary per annum. The claimant immediately queried the salary of £23,267.40, assuming a "mistype" as the agreed basis was pro-rata based on her old full-time salary (£44,000 per annum). On 9 September 2022, Mrs. Bell explained that she had counted the number of working days in a year as 295, giving a daily rate of £149.15.
The claimant presented the respondent with four pages of calculations and analysis (prepared by her brother and accountant) that argued the proposed £23,267.40 salary was severely flawed, demonstrating it was a 22.4% pay cut when calculated based on her previously contracted 44 hours per week (which would have yielded £30,000 per annum, not £44,000). The respondent rejected the claimant's working hours calculation and offered a revised rate based on a new notional denominator of 260 working days as a ‘take it or leave it’ offer.
A series of unauthorised deductions were made from her wages by the employer, spanning from May 2021 to 31 July 2023. Ms. Constantine ultimately resigned in 2023 as a consequence of the employer’s conduct, which included their failure to remunerate back pay and their insistence on an incorrect calculation methodology for the new contract terms.
The claimant lodged a formal grievance on 14 March 2023, specifically complaining about the value and method used to calculate her pro-rata pay since May 2021, asserting a breach of the Part-Time Worker (PTW) Regulations 2000 and unlawful deduction from wages.
Decision:
The ET ruled in favour of Ms. Constantine, finding an unlawful deduction from wages, constructive unfair dismissal, and unfavourable treatment arising in consequence of disability. The claim of direct disability discrimination was dismissed. As a consequence, she was awarded a total of £19,017.14.
The claimant was deemed a disabled person from December 2021 due to chronic fatigue. The respondent either knew or ought to have known that the claimant was disabled from December 2021. This knowledge came from the claimant's direct reporting of "unpredictable tiredness" and "pain".
The complaint of discrimination arising from disability (s.15 EqA) succeeded because the respondent's act of proposing a new part-time contract in August 2022 at a disproportionately low salary was unfavourable treatment arising from the claimant’s need to reduce her hours due to disability, and the respondent had failed to justify it as a proportionate means to achieve their aim of workforce certainty. The claim for constructive unfair dismissal was upheld because the respondent committed a fundamental breach of contract by withholding admitted back pay and making its payment conditional on the claimant agreeing to the disputed future salary. Finally, the Tribunal found that an unauthorised deduction from wages had occurred, applying the Apportionment Act 1870 to set the lawful deduction rate at 1/365th of the annual salary for days the claimant was rostered to work but was absent.
Implications:
This case strongly reinforces the requirement for employers to ensure that attempts to manage a disability do not create a discriminatory financial detriment. When reducing an employee's hours, the resulting contract must be calculated correctly on a pro-rata basis according to the Part-Time Workers Regulations. If a proposed salary does not comply with the law, for instance, where it is based on a flawed day-rate calculation, it will fail the high legal threshold required for objective justification under discrimination law.
Where an employee reduces hours as a consequence of their disability, imposing a disproportionately low salary constitutes unfavourable treatment arising from disability (s.15 Equality Act 2010). Employers must prove that the pay is not only fair but also "necessary and appropriate" to achieve a legitimate business aim.
Employers must never deliberately withhold payment to coerce an employee into agreeing to new contractual terms. The Tribunal classified this conduct as a serious breach of the implied term of mutual trust and confidence, making it grounds for constructive unfair dismissal.
