The Equality Act 2010 protects individuals against direct and indirect discrimination. Indirect discrimination occurs where a condition is applied which disadvantages a ‘protected’ group. So what of cutting off email access to a disabled employee on long-term sick leave? Could that be indirectly discriminatory? This question was addressed in the case of Chawla v Hewlett Packard Ltd [2015].
Chawla had a stress related illness, and in 2007 he was signed off work. Shortly after his transfer to HP and in accordance with Hewlett Packard’s policy, his access to company email and intranet was suspended. This was done to reduce the possibility of hackers or unwanted activity. In 2010 Chawla’s employer, Arcsight, was acquired by Hewlett Packard and Chawla was TUPE transferred to Hewlett Packard.
Because of the restriction on his access to emails, Chawla did not receive some important information which delayed his ability to join HP’s share purchase plan and prevented the exercise of his share options with his previous employer, resulting in a tax liability for Chawla.
Chawla raised a grievance with HP complaining (amongst other things) that:
- His email access had been cut off causing him loss and detriment
- He had not been informed of his right to exercise share options until a year after all other staff
- There had been a lack of any consultation with him regarding the merger between Arcsight and HP
- He had not been notified of any changes to his terms and conditions of employment
- The lack of information had resulted in a time lapse in joining HP’s share plan causing him loss
HP rejected Chawla’s grievances and he duly submitted claims to the Employment Tribunal (ET) including a claim that HP had failed to make reasonable adjustments by cutting off his email and intranet access. Chawla argued that HP should have amended its policy to ensure that he was not treated less favourably and was informed of matters such as the TUPE transfer and information relating to share options.
The Tribunal decided that restricting Chawla from accessing his emails did not cause him to suffer financial loss. It did, however, find that imposing the restriction resulted in a failure on the part of HP to ensure Chawla was kept informed of amendments to his terms and conditions of employment in a timely manner whilst off sick, which amounted to a failure to make reasonable adjustments.
The Tribunal found that HP had discriminated against Chawla by stopping him from joining their share scheme at the same time as the rest of their employees and it was also that HP had breached TUPE regulations. That decision was not interfered with on appeal.
This case provides a note of caution to those contemplating severing email or other access to information to those on long-term sick.
For guidance on complex TUPE regulations or advice on the treatment of employees on long-term sick leave, speak with our Employment Team.