Ms R. Phullar v Ofsted — 2024

Ms R. Phullar was an Early Years Regulatory Inspector who TUPE transferred to OFSTED on 1 April 2017 and had just over eight years' service when she was dismissed on 3 May 2022. The tribunal accepted that she was disabled by reason of skin cancer and a skin graft, and that OFSTED knew of that disability. After her return to work in October 2021 on a phased basis, occupational health advised that desk-based work was suitable but physical inspections were not; the claimant said she was not given a workstation assessment and that only a reduced workload was provided.

The unfair dismissal claim was dismissed. OFSTED relied on capability as the potentially fair reason, and the tribunal accepted that reason under section 98(2)(a) ERA 1996. Although the tribunal had concerns about aspects of the process, including limited consultation and no meaningful medical investigation beyond the occupational health report, it found the procedure adopted was reasonable. It also found the decision to dismiss was within the range of reasonable responses.

The section 15 Equality Act 2010 claim for discrimination arising from disability was also dismissed. The tribunal accepted that the claimant was dismissed as alleged, but found the dismissal was not in consequence of her disability and that her disability did not have any significant influence on the decision-making. The tribunal therefore did not need to decide whether the dismissal was a proportionate means of achieving a legitimate aim.

The reasonable adjustments claim under section 20(3) Equality Act 2010 succeeded in part. The tribunal found that requiring an EYRI to carry out on-site inspections and carrying out desk-based duties were PCPs, and that each PCP placed the claimant at a substantial disadvantage because of pain, cramps, stiffness, and neck and shoulder pain associated with sitting and typing. It found the claimant's evidence on disadvantage credible and treated the substantial disadvantage threshold as more than minor or trivial under section 212(1) Equality Act 2010. The tribunal held that it would have been reasonable to allow the claimant to shadow colleagues on inspections and to have a phased return to on-site inspections, but not to provide the Access to Work adjustments relied on or to say that alternative roles were not considered; it accepted that alternative roles and duties were considered. The failure to make reasonable adjustments claim therefore succeeded only on allegations (ii) and (iii).

The section 20(5) Equality Act 2010 claim for failure to provide auxiliary aids was dismissed. The tribunal listed the requested items, including an ergonomic chair, lumbar support, sit-stand desk, monitor arm, and voice recorder, but found the claimant was not put at any substantial disadvantage by their absence. The judgment ends by listing the case for a two-day remedy hearing on the successful reasonable adjustments claims, with further remedy evidence and documentation to be exchanged before that hearing.