Case 1402495/2020 · Employment Tribunal
Miss Charlotte Mallin-Martin of Counsel For the v Respondent — 2021
- Case reference
- 1402495/2020
- Decision date
- 22 July 2021
- Jurisdiction
- England & Wales
Parties
1 namedClaimant
Miss Charlotte Mallin-Martin of Counsel For the
Respondent
- —
Key findings
Tribunal's reasoningThe claimant, Mrs Jo Davies, was employed by EE Limited from 28 May 2019 as a customer service representative. The tribunal found that she had a disability within section 6 and Schedule 1 of the Equality Act 2010, namely a phonatory gap affecting her vocal chords. It held that the respondent had constructive knowledge of the disability from 24 September 2019 and actual knowledge from 24 January 2020.
The reasonable adjustments claim failed. The claimant had pleaded two PCPs, namely a requirement to work full-time hours and a requirement to complete shifts without agreeing a reduction in hours. The tribunal found that neither PCP was made out on the evidence, because the respondent had already allowed a phased return to work, had encouraged occupational health breaks within the reduced hours, and had discussed possible part-time work if a vacancy arose.
The section 15 claim succeeded. The tribunal found that the stage I sickness absence warning issued on 24 January 2020 was unfavourable treatment, and that it arose in consequence of the claimant's disability-related absence in early January 2020. The respondent accepted that attendance management was a legitimate aim, but the tribunal held that the warning was not proportionate because less discriminatory steps were available, including delaying the warning pending occupational health advice and discussion of adjustments.
The discriminatory constructive dismissal claim was dismissed. Although the tribunal held that the warning amounted to a breach of the implied term of trust and confidence, it found that the warning was not a material or substantial reason for the claimant's resignation on 27 February 2020. The resignation was found to have been prompted by a combination of factors, including the refusal of paid leave for a hospital appointment, the lack of an alternative part-time role, and family reasons. The tribunal recorded that the matter would be listed for a remedy hearing on the successful section 15 claim only, and that there was no loss of earnings claim because the discrimination was not causative of the resignation.
Claims and outcomes
3 findings recordedThis case has mixed outcomes under at least one legal claim type. A tribunal can uphold some allegations and dismiss others under the same legal head, so rows below may represent separate issues or allegation groups from the judgment.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Failure to make reasonable adjustments claim dismissed. The tribunal found the pleaded PCPs did not exist on the facts: the respondent did not require all employees to work a full-time 40-hour pattern, and it was not the case that employees had to complete shifts without any agreed reduction in hours. The respondent had already allowed a phased return, occupational health breaks, and had discussed a possible move to part-time work if a vacancy arose. | Dismissed | Disability | — |
| Disability discrimination | Section 15 EqA claim upheld. The tribunal found the 24 January 2020 stage I sickness absence warning was unfavourable treatment arising in consequence of the claimant's disability-related absence in early January 2020. The respondent accepted attendance management as a legitimate aim, but the warning was not a proportionate means of achieving that aim because lesser measures, including waiting for occupational health advice and considering adjustments, were available. | Upheld | Disability | — |
| Constructive dismissal | Discriminatory constructive dismissal claim dismissed. The tribunal accepted that the warning was a breach of the implied term of trust and confidence, but found it was not a material or substantial reason for the claimant's resignation on 27 February 2020. The resignation was found to be prompted by a combination of factors, including the hospital leave issue, the absence of an alternative part-time role, and family reasons. | Dismissed | Disability | — |
Legal tests applied
9 references- section 6 and Schedule 1 EqA 2010
- section 15 EqA 2010
- sections 20 and 21 EqA 2010
- section 39(7)(b) EqA 2010
- section 136 EqA 2010
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- Meikle
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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