Mr R Jones v Valero Operations Support Limited Valero Energy Limited — 2019

Mr Jones was employed by Valero Operations Support Ltd as a Control Operator. The tribunal accepted that he had the protected characteristic of disability, described as depression secondary to psycho-social stresses compounded by anxiety, with stress-related tinnitus, and found that the first respondent was his employer throughout the relevant period.

The tribunal held that a series of communications during the claimant's long sickness absence amounted to discrimination arising from disability. It found that the letters of 22 June and 5 October 2017 threatening to withhold sick pay were unfavourable treatment and not justified, that the 2 January 2018 letter threatening disciplinary action was also discriminatory, and that the refusal of an appeal against the grievance outcome was discriminatory because the claimant had been led to believe his grievance had been upheld. It also found that comments made to UNUM about the claimant being reluctant to return to work through stress and anxiety were factually incorrect and unfavourable treatment arising from disability.

On reasonable adjustments, the tribunal upheld PCP1, PCP6, PCP7, PCP8 and PCP10. It found that the claimant was at a substantial disadvantage where sick pay was threatened, where no appeal was available after the grievance outcome, where attendance requirements and capability dismissal were applied, and where a capability dismissal resulted in "bad leaver" share consequences. It dismissed PCP2, PCP3, PCP4, PCP5 and PCP9. The section 19 indirect discrimination claim was treated as an alternative argument and followed the same outcomes as the section 20 and 21 findings.

The harassment claim succeeded only in relation to the June and October 2017 letters. The allegations based on the broken-leg comparison and the February to April 2018 correspondence were dismissed. The victimisation claim was dismissed because the tribunal could not link the alleged detriments to protected acts, and the direct discrimination claim was dismissed because the tribunal was not satisfied that a comparator without disability but with similar absence would have been treated differently.

The tribunal held that the claimant was unfairly dismissed. Capability was accepted as the potentially fair reason, but the dismissal and appeal process were flawed: the decision-maker relied on incomplete material, did not see the claimant's 13 April 2018 response, did not properly consider the medical evidence or the complaint about Mr Cook, and failed to consider less intrusive alternatives such as allowing more time. On the same facts, the tribunal also found that the dismissal was discrimination arising from disability because dismissal was a disproportionate response when other options remained.

The tribunal treated the respondent's conduct as a continuing course of conduct and held that the claims it upheld were within time. The case was listed for a remedy hearing, so no compensation or award was fixed in this judgment.