Mr S Shoker v Optivo — 2020

Mr Shoker joined Optivo on 16 December 2019 as Fire Safety Contracts Manager for the Midlands. He completed equality paperwork saying that he had anxiety and depression and was awaiting an autism assessment. HR and Mr Macaulay discussed a Wellness Plan and support arrangements, including an open-door policy. The tribunal found that Mr Macaulay wanted an occupational health referral and that the delay in progressing it was explained by workload and IT difficulties rather than reluctance to assist.

The Midlands fire safety team was newly formed and busy, with Mr Cox and Ms Boulter reporting to Mr Shoker. The tribunal accepted that there were real difficulties within the team, but found that Mr Macaulay tried to manage them by holding a clear-the-air meeting, helping with Ms Boulter’s objectives, encouraging a performance plan for Mr Cox, referring matters to HR, and later extending probation rather than ending employment. It rejected most of the alleged hostile remarks and incidents, including the alleged reprimand about Teams, the alleged comment that he did not care, the alleged repeated instruction to shut up, and the alleged disability spot remark.

At probation stage, no formal 12-week review took place, but the tribunal found that regular one-to-ones did cover wellbeing and work issues. At the 23 June 2020 probation review, Mr Macaulay identified concerns about clear and timely advice, overly technical communication and relationships with colleagues. The tribunal found that those concerns were supported by the evidence from Ms Boulter, Mr Cox, Dawn Ashmore and the later grievance material, and that a comparable manager would have been told the same. It also found that Mr Macaulay’s overall approach was aimed at helping Mr Shoker succeed in role.

All claims were dismissed. For direct disability discrimination, the tribunal held that the claimant had not proved the relevant detriments or that the acts were because of disability. For harassment, it held that the pleaded incidents were either not proved or were not related to disability and did not satisfy the statutory purpose or effect test. For reasonable adjustments, the respondent knew of anxiety and depression but not of ASD, and in any event the pleaded PCPs were really complaints about treatment rather than PCPs causing a substantial disadvantage. For discrimination arising from disability, the tribunal held that the alleged unfavourable treatment was not proved in the form pleaded and that the claimant did not show that the reasons for it arose in consequence of disability. No remedy was awarded.