MS COLLINS (COUNSEL) FOR THE v Ms Beattie (solicitor) — 2022

The claimant, Alison Whittall, was employed as a Store Cleaning Manager at Asda Swansea and was accepted to be disabled by reason of osteoarthritis, carpal tunnel syndrome and hypertension. She worked under a 40-hour, five-day contract, but after a flexible working request in March 2017 the respondent allowed her to work 24 hours over three non-consecutive days on a temporary basis, saying the arrangement would not be made permanent until a job share had been recruited. The tribunal treated the refusal to make that arrangement permanent as a continuing act, so the section 15 claims were in time.

The tribunal upheld the discrimination arising from disability claim in relation to the permanent part-time arrangement, company sick pay, the 2018, 2019 and 2020 appraisals, and the refusal to provide support in store. It found those matters arose because of the claimant's inability to work 40 hours over five consecutive days, that the respondent had not made out its asserted contractual position with Asda, and that the purported legitimate aim was not shown to be proportionate. The appraisal findings were linked to the claimant's bonus entitlement and to her being assessed against full-time expectations while working part-time hours.

The tribunal rejected the other section 15 allegations, including alleged demotion through relocation offers, the November 2018 payroll errors, the alleged reduction in holiday pay, withholding information about pay and benefits, any requirement to work 40 hours in 24, the photographs taken at the July 2020 audit, the comments at the 22 July 2020 welfare meeting, and the complaint about how the job share was advertised. It found the payroll issues were innocent errors rather than discrimination, and it did not accept that the comments at the welfare meeting were linked to anything arising from disability.

The reasonable adjustments claim under sections 20 and 21 was dismissed. The tribunal accepted that a requirement to work five days or 40 hours per week and/or on consecutive days could place the claimant at a substantial disadvantage, but held that the respondent had already taken the reasonable step of allowing her to work 24 hours over non-consecutive days from August 2018. It rejected the alternative adjustments proposed by the claimant and said any earlier failure to adjust would in any event have been out of time.

The unlawful deductions claim was withdrawn at the hearing and dismissed accordingly. The judgment determined liability only, and a remedy hearing was to be listed, so no award was fixed in this decision.