A British employment tribunal has ordered this Star burger Developer Cloud Imperium Games (CIG) must pay almost £30,000 ($38,000) in damages for discriminating against a disabled employee.
The studio was taken to court by senior programmer Paul Ah-Thion (the plaintiff) after he implemented a return-to-office policy that did not meet his needs as a disabled person diagnosed with autism.
The plaintiff was hired by CIG in 2018 and informed the company of his disability at the beginning of his employment. Although initially working from the company’s Wilmslow office, the COVID-19 pandemic required staff to work remotely.
As noted in the Tribunal Judgment sent to Game Developer, following the outbreak of the pandemic, the studio opened a new office in Manchester and attempted to relocate its staff. However, during the pandemic, Ah-Thion found that working from home better suited his limitations.
Instead of relocating to the Manchester office, the claimant asked CIG for a permanent remote working arrangement. The request was quickly rejected. CIG refused to change its position despite repeated requests and eventually dismissed Ah-Thion in July 2022.
In court, CIG branded itself as a “start-up” company, despite having more than 400 employees, and tried to argue that the plaintiff had suffered from performance issues related to its work-from-home setup. It also alleged that he was unable to meet certain job criteria, such as mentoring junior employees, when he worked from home.
However, the tribunal found that “there was no specific problem with the claimant’s performance in working from home, as opposed to his performance generally.” A CIG witness stated that the company was taking a “tougher” stance on working from home, but despite the alleged problems with the claimant’s performance, never formally asked him to return to the office.
“The Tribunal finds that the Defendant’s concerns about the Claimant’s performance appeared to be rather retrospective in the sense that, while the Claimant was employed, the Defendant never formally investigated these concerns,” the judgment reads.
“The court finds that if the defendant had a serious concern about the plaintiff’s performance, they have failed to provide evidence to show why they could not successfully monitor him remotely while he was working from home. Normal performance measures, such as performance targets and regular review meetings, could have been handled online.”
Taking these points into account, together with the claimant’s acknowledgement that working in the office often left him ‘exhausted and distressed’, the tribunal found that CIG could have made the ‘reasonable adjustment’ by allowing Ah-Thion to work from home permanently. In refusing to do so, the studio was found to have acted discriminatory and disproportionately.
“The Tribunal finds that the Defendant fails to convince us that the termination of the Claimant’s employment was proportionate. We rely on the fact that we have found that working from home was a reasonable adjustment that would have mitigated the substantial disadvantage suffered by the Claimant. There is no evidence that working from home would have failed to achieve the Defendant’s legitimate aim of ensuring the acceptable performance of a senior gameplay programmer,” the judgment reads.
“We find that the respondent failed to understand the nature of the claimant’s autism. It was a condition of his autism that he struggled with his duties to act as a coach, reviewer and mentor to the junior members of the team. The evidence shows that the claimant struggled with this when working in the office. […] We find that the defendant has treated the claimant unfavourably because of something arising out of his disability. They have not been able to show that dismissal was a proportionate means of achieving the legitimate aim and therefore the claimant’s claim succeeds.”
CIG has been ordered to pay the claimant £27,748 in damages. This includes loss of earnings totalling £14,045.31 and £12,000 for emotional distress.
“Employers must be careful not to confuse a disability with a weakness”
Speaking to Game Developer, Ah-Thion said he’s still proud of his work at CIG and described many of his colleagues as “great people.” However, he also told us that the experience turned sour during his final nine months at the studio, where he was “shocked to see how willing CIG management was to ignore my disability and manipulate me about my work.”
Ah-Thion said he feels “vindicated” after the tribunal’s outcome. “I fought this alone for two years, and being autistic made the whole process extra challenging. But we are lucky to have the employment tribunal system, where an ordinary person can actually find justice without having to bankrupt themselves on legal fees,” he continued.
“It was clear to me from the outset that CIG did not want people to start working from home at the expense of their new office in Manchester, and from there worked backwards to retroactively come up with reasons why my request should be rejected, something they continued to do I did this until the last tribunal hearing, ignoring disability legislation. It was gratifying that the tribunal saw through them as easily as they did.”
He also suggested that some employers may have a “tick-the-box mentality” when it comes to accommodating disabled employees, “where all they have to do is send a manager for a two-hour disability course.”
“In reality, every disabled employee is different and the easiest and best way to do that is to talk to them, ideally on a semi-regular basis and outside the normal assessment process. Furthermore, employers should be careful not to confuse disability with with weakness,” he added.
Game Developer contacted employment lawyer Jake McManus from Kuits to find out how employers in England and Wales can support employees with disabilities and how people with disabilities can hold employers to account.
He explained that employers have a “legal obligation to make reasonable adjustments in the workplace for disabled employees” and said they should avoid a “blanket one-size-fits-all” approach when determining what adjustments should be made.
“They need to tailor the adjustments to that individual and their specific needs. Employers need to monitor these adjustments to make sure they are working and that the employee is being supported, and be flexible in making further adjustments as needed,” McManus said.
“This can be difficult in the case of invisible disabilities such as autism, as it may not be immediately obvious how a condition affects an employee at work, or whether they have a disability at all. However, employers cannot rely on ignorance: if there is evidence that an employee may be disabled, they must take steps to investigate further. An employment tribunal will not be afraid to hold an employer liable if they ought reasonably to have known about the disability and failed to carry out the necessary investigation, which would otherwise have revealed the disability.”
McManus’ advice to employees is to inform employers of their disability when they start employment. This ensures that an employer has no doubts about his legal obligations. “If an employee believes that he is being treated less fairly than other colleagues because of his disability, or because of something that is a consequence of his disability, he must bring this to the attention of his employer so that something can be done about it” , he says. continued.
“Employees should be aware that any workplace policy or procedure that places them at a disadvantage compared to other, non-disabled employees may be discriminatory. In this case, the company’s policy of requiring senior gameplay programmers to work from the office placed Mr. Ah-Thion, an individual with autism, at a disadvantage due to his social interaction difficulties.”
The game developer has contacted CIG for comment.