Mr T Sherbourne v N Power Ltd — 2018

Mr T Sherbourne, who the respondent accepted had autism, worked as a senior analyst in an open-plan environment with a busy walkway behind him, nearby building works, a flexible office arrangement and training that he found confusing. The tribunal found that he was repeatedly spoken to by his manager, Debra Glancy, about disruptive and loud behaviour in October 2017, and accepted his evidence that she said, in one meeting, "we’re not here to wipe arse". It also found that he experienced increasing distress at work, including isolation, sweating, frequent toilet breaks and difficulty coping with changes in his environment.

The tribunal accepted that by February 2018 the claimant had suffered what he described as a breakdown at work and later obtained a GP diagnosis of anxiety disorder. Occupational health on 11 April 2018 recommended four adjustments for a return to work, and the tribunal found those recommendations were explained to Ms Glancy. It found that the respondent did not put those adjustments in place, did not meaningfully understand autism until later in 2018, and used capability procedures instead of implementing the recommended measures. The tribunal also found that the respondent mixed up welfare and capability processes and, by August and September 2018, moved towards ending employment without addressing the adjustments or completing the capability process.

On indirect discrimination, the tribunal identified the respondent's provision, criterion or practice as failing to implement reasonable adjustments, using the capability procedure inappropriately, and relying on dismissal before those steps were exhausted. It held that this PCP placed autistic employees at a particular disadvantage and placed the claimant at that disadvantage, and that the respondent had not shown the PCP was a proportionate means of achieving a legitimate aim. On reasonable adjustments, the tribunal held that the same PCP put the claimant at a substantial disadvantage compared with non-disabled persons and that the respondent knew of the disability and likely disadvantage but did not take reasonable steps to avoid it.

The tribunal held that the conduct was continuous and that both claims were in time. In the alternative, it said time would be extended on a just and equitable basis for the period 11 April 2018 to 30 September 2018. Liability was found on both claims, and the matter was adjourned for a remedy hearing on 27 June 2019. The judgment itself does not record any compensation award.