Sales assistant with chronic kidney disease loses disability discrimination claim over furlough placement

A case about furlough, not disability

This case shows how the line between a legitimate business decision and discrimination can be blurred during a crisis. The claimant, a sales assistant and former nurse, was diagnosed with stage 3 chronic kidney disease in February 2020. When the pandemic hit, her GP advised her to shield, and the respondent placed her on furlough in April 2020. The claimant argued that this was unfavourable treatment because of her disability, and that the respondent should have made reasonable adjustments to allow her to work from home or return to work earlier.

What the tribunal decided

The tribunal found that the decision to furlough the claimant was not discriminatory. It was based on government guidance and advice from the respondent's accountant, and applied to all employees in a similar position. The claimant's disability was not the reason for the furlough; the pandemic was. The tribunal also rejected the claim that the respondent failed to make reasonable adjustments, noting that the claimant was not at a substantial disadvantage compared to non-disabled employees – everyone was at risk from COVID-19.

The age discrimination claim

The claimant also argued that the respondent discriminated against her on grounds of age by employing a younger worker, Rebecca Hartley, to cover her duties. The tribunal found that Ms Hartley was not a replacement but a temporary cover during the claimant's furlough. The respondent had a legitimate business need to maintain staffing levels, and there was no evidence that age played any part in the decision.

What the respondent did right

The respondent took steps that helped its defence: it sought professional advice, followed government guidance, and communicated with the claimant about the need for medical evidence before she could return to work. When the claimant requested to return, the respondent asked for medical evidence – a reasonable request given the circumstances. The claimant did not provide this, and later resigned.

Key takeaway

This case highlights that not every disadvantage suffered by a disabled employee during a pandemic will amount to discrimination. Employers who act on official guidance and treat all employees consistently are likely to have a strong defence. For employees, it is important to provide requested medical evidence to support a return to work, as failure to do so may undermine a claim of discrimination.