In person For the v Respondent — 2021

Ms Victoria Schulberg worked for Marks and Spencer Plc from 21 November 2004 until her summary dismissal for gross misconduct on 10 December 2018. The tribunal accepted that she had rheumatoid arthritis, diagnosed in 2015, and that this amounted to a disability. It found that the respondent knew of her condition and that her role involved prolonged standing, which placed her at a disadvantage. The evidence showed that the respondent had discussed adjustments with her, including seated work, breaks, swapping to other duties, and consideration of occupational health recommendations.

The dismissal arose from two incidents in November 2018. First, the claimant bought boots online using her staff discount and then received a full cash refund in store without disclosing the discount. Second, on 13 November 2018 she left the Crownhill store with groceries after a contactless card payment for the balance above the card limit had not gone through. The tribunal found that the respondent genuinely believed she had acted dishonestly, had reasonable grounds for that belief, and had carried out a fair investigation and disciplinary process. It also found that the appeal was a proper rehearing. Applying section 98(4) ERA 1996 and the Burchell approach, the tribunal held that dismissal was within the band of reasonable responses and dismissed the unfair dismissal claim.

On harassment, the claimant relied on meetings in which her health was discussed, a discussion of her condition with a colleague, an alleged challenge to her diagnosis, and the October 2018 return-to-work meeting. The tribunal rejected those allegations, finding the questions were normal and appropriate management enquiries, the diagnosis challenge was not proved, and the discussion of her condition with a colleague did not have the proscribed effect. It also held that, even if some conduct had occurred, it was not reasonable for it to be regarded as violating her dignity or creating a hostile environment. The harassment claim was dismissed, and the tribunal held in any event that it was out of time.

On reasonable adjustments, the claimant relied on the need to avoid prolonged standing and sought open-toed footwear, a chair at the customer service desk, and more freedom to sit or move away from the shop floor. The tribunal held that the respondent had already put in place reasonable adjustments, including breaks, seated duties, and the ability to swap to other areas. It accepted that open footwear posed an injury risk in the working environment and that a chair at the customer service desk was not a reasonable step given the space constraints, especially because other adjustments were already working. It therefore dismissed the reasonable adjustments claim and, separately, held that it was out of time and that there was no basis to extend time on a just and equitable basis.