Mrs C Donovan v Tesco Stores Ltd — 2021

The respondent admitted that the claimant was disabled by reason of depression and/or anxiety from April or May 2018 and had knowledge of that disability. The tribunal found that requiring the claimant to work on checkouts placed her at a substantial disadvantage because it tended to exacerbate her anxiety, and that the respondent knew or could reasonably have known of that disadvantage after the 29 April 2019 fit note.

The tribunal rejected the broader reasonable adjustments claim seeking a permanent daytime role away from checkouts, finding it was not reasonable to require the respondent to create and employ the claimant in a role it did not need. It reached a different conclusion about 23 May 2019: the claimant had asked to work away from the checkout while waiting for a GP call, the burden of accommodating that for a few hours was modest, and the respondent failed to take a reasonable step likely to avoid the disadvantage on that occasion. Time was extended on just and equitable grounds for that complaint.

The discrimination arising from disability claim was dismissed. The refusal on 23 May 2019 was not found to be because of the claimant's need to take the GP call, and although dismissal was because of disability-related sickness absence, the tribunal found dismissal proportionate in pursuit of the respondent's legitimate aim of managing attendance and staffing levels. The unfair dismissal claim was also dismissed because the respondent had consulted, obtained occupational health advice, explored return-to-work options, and reasonably concluded there was no foreseeable return to work.

The breach of contract claim for fuel expenses was dismissed because the tribunal found no contractual term covering all expenses associated with the programme. On remedy, the tribunal decided no loss of earnings would be recoverable for the successful reasonable adjustments claim because the claimant would probably have commenced sickness absence at or about the same time in any event; the only potential financial remedy was injury to feelings, with the tribunal giving only a provisional view that the lower Vento band was likely.