Gary Davis v Openreach Ltd and 1 other — 2022

The claimant, a Frames Technician with type 1 diabetes, had a BT passport recording workplace arrangements including a preferred working area and no secondary working area. The respondent accepted disability and knowledge. The dispute arose after Mr Tucker, a new line manager, considered that there was insufficient work within the existing exchange area and proposed expanding the claimant's work area, with an Occupational Health referral to advise on safety and appropriate restrictions.

The tribunal found that the direct disability discrimination claim failed because a hypothetical comparator with the same abilities but without the disability would likely also have been referred to Occupational Health where management perceived a need to expand the working area. On the section 15 claim, the tribunal found that Mr Tucker did not threaten the claimant's continued employment if he could not drive on motorways, and that the referral was not unfavourable treatment. If that conclusion was wrong, the tribunal found the referral was justified by legitimate aims relating to safety, support for employees, and efficient workforce operation.

The harassment claims also failed. The tribunal found that Mr Tucker did not unnecessarily and continually pressurise the claimant to undertake an Occupational Health review, and that there had been an apparent three-party agreement to the referral with the claimant and his union representative. The tribunal accepted that Mr Tucker likely said 'no licence, no job' on 14 January 2021, but found this addressed work on the Frames team, that the claimant did not regard it as harassment, and that it would not have been reasonable for him to do so in the circumstances.