Ms R Levene - Counsel For the v Mr S Jagpal - Consultant — 2019

The claimant, Mr S Pointon, was disabled within section 6 of the Equality Act 2010 because of kidney cancer, and the tribunal accepted that the respondent had actual or constructive knowledge of that disability from August 2016. The tribunal described a strained working relationship with Mr Lawton, and later Mr Taylor, with recurring disputes about hours, sick pay, workload, and what was expected while the claimant was ill.

Applying Pnaiser and Williams, the tribunal found that requiring Mr Pointon to work out of hours in early 2018 was unfavourable treatment arising from his disability-related need to reduce stress and workload, and that the repeated expectation of long hours and out-of-hours availability was not justified by the respondent's operational aims. It also found unfavourable treatment in the hostile way Mr Lawton dealt with the 6 March 2018 discussion about rest before treatment, the 10 May and 14 May 2018 incidents, the 5 June 2018 home delivery of a letter, the direct contact on 21 June 2018 while he was in hospital, and the late notification of the end of SSP.

Not every allegation succeeded. The tribunal held that non-payment of discretionary sick pay during the second period of sickness was an unfavourable treatment but was a proportionate means of controlling company finance, so that aspect failed. It also rejected some allegations about the 7 March 2018 meeting, the claimed micromanagement on 14 and 16 March, and the allegation that the final days before treatment involved the treatment described by the claimant.

On reasonable adjustments, the tribunal accepted that long hours, out-of-hours expectations, and direct contact while the claimant was ill put him at a substantial disadvantage. It found that reducing workload, reducing the length of the working day, reducing out-of-hours contact, and liaising with his father during hospital treatment were reasonable adjustments that should have been made, but it rejected the claims for discretionary sick pay and for giving him four to five days off before treatment. On harassment, the tribunal upheld the allegations it found to involve unwanted conduct related to disability, including the March, May, and June 2018 incidents that created a hostile environment, while rejecting other alleged incidents where it found the meetings were simply frank exchanges or the evidence did not support the description advanced.

The victimisation claim was dismissed because the tribunal held that only the 14 May 2018 letter amounted to a protected act, and the detriments relied on were not caused by it. The tribunal then found that the cumulative discriminatory conduct, together with the failure to provide the SSP1 form in time, amounted to a repudiatory breach of the implied term of trust and confidence. Mr Pointon had not affirmed the contract before resigning, so he was unfairly constructively dismissed. The hearing dealt only with liability; the tribunal refused a late amendment to add personal injury and left remedy to be relisted.