In person For the v Respondent — 2022

Dr Borgstein sought to retire and return on a part-time basis from July 2018. The Respondent did not progress the request promptly, and the tribunal found significant delay before a 12-month fixed-term return offer was first made in March 2020. During the hearing the Claimant withdrew the separate FOI-delay complaint, so the tribunal decided only the remaining direct race discrimination and direct associative disability discrimination issues arising from the retire-and-return process, the job-plan discussions, the WLCH referral, and the appeal-stage panel composition.

The tribunal accepted that the Claimant’s son and 88-year-old mother each met the Equality Act definition of disability. It also accepted that the fixed-term offer and the delays were detrimental to the Claimant, but it found that Mr Hrouda had offered 12-month fixed-term retire-and-return contracts to other consultants as well, including White consultants, and that Mr Taube was not a valid comparator because his application was dealt with by a different manager. The tribunal found no facts from which race could be inferred as a material reason for the offer, the delay, the referral to WLCH, or the decision not to substitute a BAME decision-maker.

On the associative disability claim, the tribunal found that Mr Hrouda was unaware of the son’s and mother’s conditions when he first offered the fixed-term contract, and that those conditions did not form part of the later decisions either. It therefore dismissed the claim. The judgment notes a minority view on parts of the reasoning, but the Rule 49 majority decision was that the Respondent had not contravened ss 13 and 39(2)(d) Equality Act 2010, and no remedy was awarded.