Former postal apprentice with Asperger’s syndrome wins Tribunal award over employer’s failure to provide blue badge space

About this case:

• Citation:
  4113754/2021
• Judgment:
  External link
• Court:
  Employment Tribunal (Scotland)
• Judge:
  Employment Judge D Hoey

The claimant, Mr S Johnstone, also claimed that he had been subject to a number of discriminatory acts relating to his disability, having been diagnosed with Asperger’s syndrome, dyslexia, and anxiety. His employer, Royal Mail Group Ltd, disputed the claims, arguing that there had been no hostility towards the claimant.

The case was heard by Employment Judge D Hoey along with Tribunal members V Alexander and E Farrell. The claimant was represented by his father and the respondent by Ms Maher, solicitor.

Workplace culture

The claimant started work at the respondent’s Kilmarnock delivery office in October 2021 as a postal apprentice. The respondent sought an occupational health report following his disclosure that he was disabled, which advised that he should be given extra time with written and reading tasks, advance communication of changes in the workplace, and a quiet space to perform work tasks.

It was the culture within the Kilmarnock office that the staff blue badge spaces were used by non-badge holders. On his first day at work, all the staff spaces were full and the claimant’s line manager, Mr Watret, told him to use a customer disabled space for the day. The claimant was unable to consistently use a staff disabled space on subsequent workdays, and on several occasions was asked by staff why he had parked in a customer bay.

A workplace coach, Mr Lawless, was assigned to the claimant, who had experience of working with people with Asperger’s. During a discussion with the claimant, Mr Lawless told him about a previous experience he had when a colleague who had Asperger’s had made inappropriate comments during a team meeting. He advised the claimant that he would speak with his manager to see if he would instead be given one-to-one meetings.

The claimant terminated his employment on 20 October 2021, stating he believed he had been mistreated and discriminated against because of his disability. In support of his case before the tribunal the claimant highlighted that Mr Lawless had stated he would speak to his line manager about excluding him from team meetings and argued he had been treated unfavourably by the respondent not providing him with a parking space and what he argued had been harassment for parking in customer disabled spaces.

Fervent belief

In its decision, the Tribunal said of the evidence before it: “On occasion the Tribunal found the claimant would accentuate matters that suited his perspective which may have been due to the claimant’s firm belief that he had been discriminated against or due to his memory. In some significant respects there was an absence of evidence before the Tribunal. Thus the Tribunal was unable to make findings as to the alleged verbal abuse the claimant asserted he has sustained as a consequence of his not wearing a mask or having parked in the customer bays.”

It continued: “The Tribunal considered that the claimant’s recollection arose as a result of his having considered matters after the event combined with his fervent belief that his disability was the reason for the treatment. From the evidence, the Tribunal considered the interactions the claimant had to have been normal interactions amongst individuals rather than abuse, which was supported by what was said by the claimant to Mr Lawless at the time.”

On whether the claimant had been discriminated against because of his disability, the Tribunal said: “The claimant was not excluded from meetings because of a stereotypical belief as to his disability. Mr Lawless was telling the claimant he would seek advice as to how best to deal with the matter given the approach that had been taken before as he had understood there may have been a protocol in place.”

It added: “It was not less favourable treatment to seek guidance from a manager (and tell an employee that was what was happening) in respect of something that had happened in the past (to check whether a protocol existed). As the treatment did not amount to less favourable treatment it was not necessary to consider the other elements of this claim. The direct disability discrimination claim is ill founded and is dismissed.”

Addressing the failure to ensure the claimant had access to a staff disabled space, the Tribunal said: “The respondent was aware of the disadvantage to which the claimant was put since it knew that the claimant required structure to his day. When the claimant arrived on the first day and told Mr Watret he needed a disabled parking space, it ought to have been obvious, given the claimant’s disabilities and the terms of the Occupational Health report, that if he is unable to find a space, he would become overwhelmed and anxious.”

It concluded: “It would not have been difficult for the respondent to have taken steps to ensure a dedicated space was reserved for the claimant. The respondent should have ensured within, at most, 3 days of becoming aware that staff had not implemented the instruction they were given. It would have been possible to have reserved the space and ensured the claimant was able to park in the staff car park safely.”

The Tribunal therefore considered that an appropriate award would be £3,000, discounted to £2,700 to reflect the fact that the claimant did not raise the matter formally with his employer.