Mr P O’Callaghan, Counsel For the v Respondent — 2019

The tribunal accepted that Miss Nilofar Hossain was a disabled person within the meaning of section 6 Equality Act 2010 by reason of limited cutaneous systemic sclerosis and Secondary Raynaud's phenomenon. The case concerned a long-running dispute about workplace adjustments, occupational health assessment, performance management, special leave, and grievance handling at the Cabinet Office, with the tribunal finding that the claimant had been out of the workplace for long periods and that the parties had become locked in an impasse over how assessments should be conducted.

On the direct discrimination claim, the tribunal held that the claimant was not treated less favourably because of disability when she was not invited to an end-of-year appraisal meeting, when Mr Walker sent the 24 May 2019 email saying that if she did not engage with the identified assessor her absence would be treated as sickness absence, or in relation to the assessor issue itself. It found that the appraisal decision was driven by Mr Walker's concern about a difficult conversation and the lack of reliable performance material, rather than disability. It also held that the 24 May 2019 email was an appropriate and reasonable attempt to move the process forward, and that the respondent had gone beyond what a reasonable employer would usually do in trying to source an assessor with the claimant's requested features.

On the discrimination arising and indirect discrimination heads, the tribunal found that the pleaded keyboard incident on 6 September 2018 and the 14 September 2018 deadline issue were one-off events rather than PCPs, following Ishola v Transport for London. It accepted that the claimant experienced pain from keyboard and mouse use, but found that the respondent had already put in place extensive adjustments, including chairs, footrests, specialist mice, multiple keyboards, Dragon dictation software, laptops, wrist rests, training, and a monitor. It further found that the air-conditioning point had not been shown to cause an actual substantial disadvantage on the evidence, and that the delay in secure-area dictation software was explained by security issues rather than a failure to make adjustments.

The harassment claim failed. The tribunal accepted that the 10 October 2018 canteen conversation touched on the claimant's disability and was held in a public place, and it noted that this was an unsatisfactory setting for a sensitive discussion. It did not accept, however, that Mr Walker asked when the condition would become fatal, and it held that the conduct, judged objectively, did not amount to harassment under section 26 and Richmond Pharmacology v Dhaliwal. The other harassment allegations, including the keyboard incident, the deadline issue, and the alleged failure to provide adjustments, were also rejected.

The victimisation claim was dismissed in full. The tribunal accepted that the claimant had done protected acts by notifying ACAS, telling Mr Walker matters might be better resolved at tribunal, and raising a grievance, but found that the alleged detriments were either not detriments at all or were not because of those acts. It found that the appraisal omission, the 24 May 2019 email, the grievance-process complaints, the handling of the medical advice, and the grievance outcome were all based on genuine management or procedural reasons. The grievance and appeal were not ideal, and the appeal was partly upheld on process points, but the tribunal found that those failings made no difference to the substantive outcome. All claims were dismissed and no monetary award was made.