Mrs A Evans v GE Capital Funding Services Limited — 2019

Mrs Evans was employed by GE Capital Funding Services Limited from March 2012 and was off work from June 2016 with stress-related illness. The tribunal found that she had a mental impairment throughout the relevant period and that it amounted to a disability by November 2013. It also found that Ms Lewis knew, or in the alternative ought reasonably to have known, of the claimant’s disability by October 2013 from her observed symptoms, absence history, and knowledge that the claimant had been referred for counselling.

On time limits, the tribunal rejected the claimant’s argument that all allegations formed one continuing act. It treated the alleged omissions and acts as a series of distinct events, so the claims before 6 September 2017 were out of time on the face of s123 EqA. However, it extended time on the just and equitable basis, taking account of the claimant’s ill-health, her use of the internal grievance process, the contemporaneous documents, and the fact that she issued proceedings promptly after the final grievance outcome in November 2017.

The reasonable adjustments claim succeeded in part. The tribunal found that Ms Lewis had a practice of not referring employees for occupational health after prolonged sick leave, and that this placed the claimant at a substantial disadvantage because it denied her an earlier opportunity for her disability to be identified and supported. A referral to occupational health in October 2013 was found to be a reasonable step that would have avoided that disadvantage. The separate allegation concerning delay before referral to Group Income Protection did not succeed because the tribunal found no substantial disadvantage compared with non-disabled colleagues.

The discrimination arising from disability claim succeeded on three groups of allegations. The tribunal found that the March 2016 appraisal remark about the claimant’s resistance and anxiety to change was unfavourable treatment because of something arising in consequence of her disability, namely her levels of anxiety. It also found that repeated suggestions in November 2016, January 2017, and 27 January 2017 that the claimant consider reconciliation with Ms Lewis were unfavourable treatment linked to her long-term sick leave and not proportionate in light of the occupational health recommendation for redeployment to a new manager. The 1 August 2017 letter starting formal absence management was also held to be unfavourable treatment because it was driven in significant part by the claimant’s long-term ill-health absence.

The harassment claim succeeded on several allegations and failed on others. The tribunal held that the August 2015 comment that the claimant needed to cope better with her anxiety, the March 2016 appraisal note referring to resistance and anxiety to changes, the 13 June 2016 comment that others had to deal with her workload while she was off sick, and the 27 July 2017 threat about absence management and possible termination were unwanted conduct related to disability. It found that some of those acts had the purpose or effect of violating the claimant’s dignity or creating a hostile environment. Other alleged harassment items, including the PIP allegation and certain reconciliation-related comments, were dismissed. The judgment was liability only and the tribunal directed that the case proceed to a separate remedy hearing.