Case 1810639/2018 · Employment Tribunal
Mrs S Whitham v Tesco Stores Ltd — 2019
- Case reference
- 1810639/2018
- Decision date
- 26 July 2019
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Little
- Venue
- Sheffield
- Panel members
- Mr D Fell, Mr K Smith
Parties
2 namedClaimant
Mrs S Whitham
Respondent
Key findings
Tribunal's reasoningThe claimant, a customer assistant with arthritis affecting her hands and other mobility issues, had difficulty opening cardboard packaging and completing replenishment work within the times set by the respondent's replenishment scheduler. The Tribunal found that the requirement to unpack and shelve stock within expected time frames was a PCP which placed her at a substantial disadvantage because of disability.
The Tribunal found that reasonable adjustments were available, including continuing the aisle 11/toilet roll shrink-wrap duties, using the bread element of the bread and cakes role supplemented by other work, and properly considering other roles or vacancies at other stores. It found the respondent's approach from October 2017 gave insufficient consideration to further adjustments and relied on limited medical evidence before dismissal.
The discrimination arising from disability complaint succeeded only in relation to dismissal. The Tribunal accepted capability as a potentially fair reason for dismissal, but found the respondent had not obtained adequate updated medical evidence and had not properly explored alternatives to dismissal, so the unfair dismissal complaint also succeeded. Remedy was left to be determined at a later hearing.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Failure to make reasonable adjustments complaint succeeded. The Tribunal found the PCP concerning unpacking and shelving stock within expected time frames placed the claimant at a substantial disadvantage and that reasonable adjustments had not been made. | Upheld | Disability | — |
| Disability discrimination | Indirect disability discrimination complaint succeeded. The Tribunal found the same PCP disadvantaged the claimant and dismissal was not justified as a proportionate means of achieving the legitimate aim. | Upheld | Disability | — |
| Disability discrimination | Discrimination arising from disability succeeded in part. The Tribunal dismissed the pleaded section 15 points concerning not moving the claimant to modified work and not deploying her to bread and cakes, but upheld the complaint in relation to dismissal. | Upheld | Disability | — |
| Unfair dismissal | The Tribunal found capability was a potentially fair reason, but the dismissal was outside the band of decisions open to a reasonable employer. | Upheld | — | — |
Legal tests applied
9 references- Equality Act 2010 section 123(4)
- Kingston-Upon-Hull CC v Matuszowicz
- Sheikholeslami v University of Edinburgh
- Equality and Human Rights Commission Code of Practice on Employment
- Pnaiser v NHS England
- Southampton City College v Randell
- Employment Rights Act 1996 section 98(2)
- Employment Rights Act 1996 section 98(4)
- band of decisions open to a reasonable employer
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.
How we got this data
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