In person For the v Respondent — 2021

The tribunal found that Mr Trivett was disabled throughout the relevant period by COPD, and that he was also disabled by depression from at least September 2019 because the depressive disorder had substantial effects on concentration, interaction and day-to-day functioning and was likely to recur given earlier episodes. It accepted that some excessive personal internet use in October 2019 was linked to the depressive illness, but found that the mileage issue was different because the inaccuracies pre-dated the mental ill-health.

The respondent investigated after CCTV and systems reports showed discrepancies in mileage claims and extensive personal internet use. Mr Tripp dismissed Mr Trivett for gross misconduct based on falsely claiming mileage over a sustained period, not for the internet use, and Mr Abbott upheld the dismissal on appeal. Applying section 98(4) ERA 1996 and the Burchell approach, the tribunal held that the employer had a genuine belief based on reasonable grounds after a reasonable investigation and that dismissal was within the range of reasonable responses.

On the Equality Act claims, the tribunal held that asking about the claimant's lateness did not amount to harassment related to disability: Mr Brackenbury's questions were about repeated lateness without notice, not COPD, and the claimant had not raised COPD when challenged. For reasonable adjustments, the tribunal found that the relevant PCP put him at a disadvantage, but the reasonable step was the one already taken by Mr Brackenbury, namely allowing lateness because of COPD provided a manager was told so cover could be arranged. The s.15 claim failed because the dismissal was for sustained mileage overclaiming, which the tribunal found did not arise in consequence of depression; to the extent the internet use was linked to depression, investigating it was proportionate. The harassment, reasonable adjustments and discrimination arising from disability claims were dismissed, and although time was extended just and equitably for the harassment and adjustment claims, they still failed on the merits.