Mr. Frew, Counsel v Respondent — 2021

The tribunal refused the respondent's late application to add delay and waiver to the constructive dismissal defence, applying the balance of injustice and hardship in Selkent and Vaughan v Modality Partnership and finding that the claimant would be prejudiced because she had not been on notice of, or cross-examined about, that issue. It accepted that the claimant was disabled by grade 3 anaplastic astrocytoma and that the respondents knew of the disability, and it recorded that the claimant returned from long sickness absence on a phased basis in January 2019 before later being moved away from her Early Years role.

On direct disability discrimination, the tribunal found that from September 2019 the claimant was not given the opportunity to work in Early Years. It rejected the respondent's explanations about cost and the claimant's wish to remain on a 0.5 FTE contract, found that she was not asked whether she would take the role, and held that Claire Sargeant, a less experienced comparator, was given the post instead. The tribunal concluded that the less favourable treatment was because of disability.

On discrimination arising from disability and reasonable adjustments, the tribunal accepted that the claimant's difficulty coping with Key Stage 1, including memory loss and word-finding problems, arose from her disability. It found that the respondent's PCPs of requiring her to work in Key Stage 1 and of deploying part-time staff to cover PPA time placed her at a substantial disadvantage, and that the reasonable adjustment should have been to allow her to work in Early Years from September 2019. The tribunal also upheld the s.15 claim on the capability threat, the suggestion of ill-health retirement and the campaign to identify negative capability issues, but not on the February 2020 communications or the occupational-health contact.

The harassment and victimisation claims also succeeded overall. The tribunal held that the pleaded conduct was unwanted and, apart from the training and occupational-health-contact allegations, related to disability; it treated the refusal of Early Years as part of the direct discrimination finding rather than a separate harassment act. It found a protected act in the claimant's concerns raised on 16 and 29 October 2019, and held that later detriments, including the capability threat, the ill-health retirement suggestion and the February 2020 communications, were because of those protected acts. On constructive unfair dismissal, the tribunal held that the respondent's cumulative conduct amounted to a repudiatory breach of trust and confidence and that the claimant resigned in response on 28 July 2020. It also found, under section 39(2)(c) EqA 2010, that the claimant was dismissed because of her disability. A separate remedy hearing was to follow, so no award was determined in this judgment.