In person For the v Respondent — 2022

The tribunal found that the claimant was disabled by reason of a mental impairment from February 2014 to December 2015 and again from January 2018 to the date of claim, and also that diabetes was a disability with constructive knowledge from January 2018. It rejected the direct race discrimination claim in full, holding that the respondent had not treated the claimant less favourably than actual or hypothetical comparators across the pleaded incidents, including the 2014 investigation, suspension and dismissal, the special leave dispute, the March-April 2018 exchanges, the Medhurst email, the contractor complaint, the OH referral and the 2020 contact restriction.

On the discrimination arising from disability claim, the tribunal accepted that the refusal to allow the claimant to progress to SSM shadowing and training from late 2017 onward was unfavourable treatment linked to his sickness absences and phased returns. It held, however, that the respondent had established objective justification: the legitimate aim was the proper running of the business and ensuring a person who could reliably perform a highly stressful SSM role, and the decision not to progress the claimant at that stage was proportionate given his attendance record and repeated periods on phased return.

The tribunal rejected the remaining s.15 allegations either because they were not unfavourable treatment, or because they were not shown to be caused by disability-related absence or role limitations. It found, for example, that the cleaner's statement, the suspension, the investigation and the dismissal were driven by the disciplinary allegations rather than disability-related matters, and that the other workplace interactions complained of were not shown to be disability-based treatment. It also noted that the progression process was ad hoc and not clearly laid out, which contributed to the claimant's sense of unfairness, but it held that this did not establish race discrimination.

The disability harassment claim succeeded on a single incident. Robert Medhurst's email of 1 May 2018, sent in response to the claimant's email about the changed shift pattern, was found to be unwanted conduct related to disability and to have the effect of humiliating and intimidating the claimant; the tribunal also held it was reasonable for it to have that effect. The claim was out of time, but time was extended as just and equitable because the incident was clear, the claimant believed discrimination was continuing, and there was little prejudice to the respondent.

Remedy was not finally determined in this judgment. The tribunal heard no remedy evidence, said that the claimant had not shown loss of earnings from the harassment finding, and indicated only that an injury to feelings award in the mid-range of the lower Vento band was likely if the parties could not agree settlement.