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Dismissal of diabetic driver for urinating in a yard was unfair and discriminatory

Makbool Javaid - Simons Muirhead & Burton Law

In ASDA Stores Ltd v Raymond, R was employed as a lorry driver. He has Type 2 diabetes. He parked his lorry close to the loading bay of an ASDA store. On leaving his lorry he felt an urgent need to urinate and relieved himself in a discreet part of the yard. R was subsequently dismissed for gross misconduct, i.e. a deliberate breach of Health and Safety Regulations that could endanger himself or others or bring the Company’s name into disrepute.

The EAT agreed with the ET that R had been unfairly dismissed. The investigation and dismissing officers had not properly considered the reasons why R had urinated, and no medical evidence was obtained despite the relevance of R’s diabetes. R had also been discriminated against. Medical evidence confirmed that urinary problems of the type experienced by R are known effects of his condition and it is highly likely R would have a sudden and immediate need to empty his bladder. This had been R’s experience and his disability placed him in the predicament that he found himself on the day in question, which amounted to unfavourable treatment arising in consequence of his disability contrary to S.15 of the Equality Act 2010. 

Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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