Worker fails to prove that high blood pressure precluded him from night shifts

An Employment Appeal Tribunal (EAT) has dismissed the appeal of a casual worker with hypertension (high blood pressure) after he failed to adequately prove that this condition prevented him from undertaking regular night shifts.

Francis Mutombo-Mpania was employed as a flexible worker by Angard Staffing Solutions, which supplies Royal Mail with casual staff, from November 2015. He had been diagnosed with essential hypertension – raised blood pressure without a known cause – in March 2011 and took medication daily to prevent the associated risks, such as heart attacks. His symptoms included headaches, fatigue and breathing difficulties.  However, on his job application form, Mutombo-Mpania indicated he did not consider himself to have a disability.

Angard offered Mutombo-Mpania shifts through text message, which he could accept or decline. Throughout his first year with Angard, Mutombo-Mpania worked a late shift finishing at 10pm at Glasgow Mail Centre. As the Centre needed more night workers over the Christmas period he was offered night bookings between 21 November 2016 and 13 January 2017, which he accepted. He  later emailed Angard to say his “health condition” prevented him from working nights regularly and asked to be moved to an earlier work pattern.

Angard responded and changed his shifts to the earlier time for the first week of the period. Mutombo-Mpania replied to ask what times he was booked to work during the subsequent weeks, again stated that his “health condition” prevented him from undertaking regular night work. He then failed to attend shifts he had been booked for on four occasions between 21 November and 15 December. As a result, Glasgow Mail Centre contacted him to say it no longer wanted him to work there.

Mutombo-Mpania brought a range of claims to the employment tribunal, including one for disability discrimination.  The original tribunal found that he had not provided sufficient evidence in relation to how his hypertension affected his day-to-day activities. It also found that, even if he had proved he was disabled, his employer could not have reasonably known this.

“The only matter referred to was a desire not to work regular night shift,” the tribunal judgment states. “[Mutombo-Mpania] offered no explanation regarding the impact working regular night shifts had on him and/or why this was caused by his impairment.”

Mutombo-Mpania appealed, arguing the initial tribunal had failed to properly consider the evidence available regarding his hypertension and to address the steps his employer should have taken to ascertain whether he was disabled.

The EAT dismissed his appeal, emphasising the principle that the burden of proof is on the employee to show that they meet each requirement within the legislative definition of a disability.  Whilst this may be of some comfort to employers, they should be aware that a tribunal will look at whether they had any knowledge of a potential disability and, if they did, whether they properly explored any reasonable adjustments that could be made.  Employers are, therefore, advised to always conduct a full investigation into any reported health issues that employees claim are affecting their ability to work and to ensure that they are fully responded to.

Click here to return to PBS HR Newsletter – October 2018