Mr Probert (Counsel) For the v Mr Henry (professional representative) — 2021

The claimant, an office manager with long service, was found to have familial hypercholesterolaemia (FH), which the tribunal held was a disability within the Equality Act 2010. It accepted that FH was a long-term impairment and found that it had a substantial adverse effect on normal day-to-day activities, including diet, exercise, social activity and the need for regular monitoring and statins. The tribunal also found that the respondents had constructive knowledge of the disability and of the risk that management contact could worsen the claimant's health, based on her earlier emails, GP evidence and the Occupational Health report.

The constructive unfair dismissal and breach of contract claims succeeded against the First Respondent. The tribunal found that the First Respondent failed to act on Occupational Health advice, which said the claimant did not have the ability to participate in investigation or management meetings and suggested an informal meeting with a neutral party at a neutral venue. Instead, the respondents sent repeated invitations to formal case review meetings, including letters dated 5 February 2019 and 6 March 2019. Applying the Western Excavating and Kaur approach, the tribunal held that the 6 March 2019 letter was the most recent act that triggered the resignation, that the claimant had not affirmed the contract, and that the conduct amounted to a repudiatory breach of mutual trust and confidence. It also found the dismissal unfair under section 98(4) ERA 1996. On breach of contract, the tribunal found the claim established and recorded that the claimant would have been entitled to 10 weeks' notice.

The disability claims also succeeded in material part. The tribunal held that the absence management procedure with an expectation that the claimant attend a case review meeting at the Dorchester office put her at a substantial disadvantage, and that reasonable adjustments would have included following the Occupational Health recommendation of an informal meeting with a neutral party at a neutral venue. It found that the respondents had constructive knowledge of the disability and disadvantage, and rejected the proportionality defence under section 15. It further upheld harassment in relation to the 5 February 2019 and 6 March 2019 letters, finding that they were unwanted conduct related to disability and had the effect of violating the claimant's dignity or creating a hostile or humiliating environment. The separate harassment allegation based on the 18 March 2019 letter failed because the tribunal did not regard that response letter as unwanted conduct related to disability. The indirect discrimination complaint had been withdrawn, and this liability judgment did not determine remedy.