Mr I Browne (Counsel) For the v Respondent — 2022

The claimant was an Outpatient Administration Clerk from June 2016 until she resigned on 8 April 2020. The parties accepted that she was disabled, with cervical spondylosis from October 2018 onwards causing substantial pain and discomfort when sitting for long periods and when moving her neck while working at a computer. Occupational health and medical reports in October and December 2018, June 2019 and November 2019 recommended rotation of duties, changes of posture, alternative duties, time off for treatment, frequent rest breaks, and then a phased return with reduced hours. The tribunal found that some limited steps were taken, including a new chair, a DSE assessment and taping the cracked floor, but that many of the recommendations were not properly discussed with or implemented for the claimant.

The direct disability discrimination claim failed. The tribunal accepted that the claimant was often treated badly, including in relation to the cracked floor, the handling of grievances, and the dispute over leave in October and November 2019, but held that a non-disabled comparator would have been treated in the same way on the facts it found. It concluded that the relevant decisions were driven by poor management, a difficult working relationship with JB, or the respondent's view of the situation, rather than because of disability. The victimisation claim had been withdrawn.

The discrimination arising from disability and harassment claims succeeded in part. The tribunal found that the claimant's need for time off and for adjustments arose in consequence of her disability. It held that the late-October/early-November 2019 leave dispute, JB's 31 October email about paying for cover, the 4 December 2019 remark that "we don't do sick here", the refusal of leave and request for proof on 6 December, the disciplinary investigation started on 12 December 2019, and the move to Concierge on 17 January 2020 were unfavourable treatment arising from that disability-related need. The same course of conduct was also held to be unwanted conduct related to disability which violated dignity or created a hostile environment. The tribunal rejected the respondent's proportionality defence to the disciplinary route because JB knew the claimant had been authorised to leave and had arranged cover through her supervisor. It did not accept that the unanswered February 2020 grievance or the April rota issue were linked to disability.

On reasonable adjustments, the tribunal held that the respondent had applied a PCP of requiring the claimant to work her contractual shifts at her workstation. That PCP placed her at a substantial disadvantage because her role involved prolonged sitting and repeated neck movement, and the cracked floor further exacerbated pain. The tribunal found that reasonable adjustments should have included reassignment to other desks or duties, more suitable shift hours, allowing leave for sickness and treatment, and fixing the uneven floor. It did not accept increased emotional support or enhanced communication as a reasonable adjustment on the evidence. On unfair dismissal, the tribunal held that the persistent failure to consider adjustments, the decision to call the claimant to a disciplinary process while she was off sick, and the move to Concierge without consultation were repudiatory breaches of the implied term of mutual trust and confidence. It found that the claimant resigned in response to those breaches and was constructively unfairly dismissed. Remedy was not determined in this judgment; a separate remedy hearing was listed.