Miss R Dixon v Mr B Statt and 1 other — 2019

Miss Dixon worked for David Higham Associates Ltd from 3 to 14 December 2018 and was summarily dismissed with pay in lieu of notice. The tribunal recorded illness-related delay to her start, a medical appointment on 5 December, a further discussion on 7 December about a uterine mass, and concerns from Mr David Newton and Mr Brian Statt about her tiredness, yawning, Excel skills and motivation. Her claim was presented as perceived disability discrimination and was clarified at the hearing to include both direct discrimination under s13 and discrimination arising from disability under s15 of the Equality Act 2010.

The tribunal found that the true reason for dismissal was Mr Statt's view that the claimant was performing very poorly, lacked basic skills and motivation, and offered little prospect of succeeding in the role. It found that her medical absence and the prospect of further appointments were additional negative considerations, but were not decisive. It also found that the need to secure a recruitment-fee refund affected the timing of the decision. On the evidence, Mr Statt did not perceive the claimant to have cancer or any other condition capable of amounting to a disability.

The direct discrimination claim failed because the tribunal found no protected-characteristic reason for the dismissal and held that a hypothetical non-disabled comparator would have been treated in the same way. The tribunal rejected the argument that the case involved an impermissible stereotypical assumption about disability-related time off work. The s15 claim also failed because the tribunal found there was no disability, real or perceived, and because s15 protects a disabled person.

The tribunal nevertheless said that, if it were wrong on those points and s15 applied to perceived disability cases, the claimant would only have succeeded on the basis that future medical absences were a minor contributing factor in the decision to dismiss. On that alternative footing, it would not have upheld the justification defence, but compensation would have been limited and there would have been no pecuniary loss; the tribunal indicated that it would have awarded £900 for injury to feelings at the bottom of the lowest Vento band. In the event, all claims failed and the proceedings were dismissed.