Ms S Dervin, Counsel For the v Respondent — 2020

Mr Walsh was accepted to be disabled by Crohn's disease, and the Respondent had actual knowledge of that disability. The tribunal held that claims based on events in 2018 were out of time and declined to extend time for those decisions, but it extended time from February 2019 onward because those events were closer in time, well documented, and involved the same decision-maker. The claim was presented on 6 July 2020 after ACAS early conciliation.

On reasonable adjustments, the tribunal identified the relevant PCPs as working five days a week with physical attendance and the requirement for consistent attendance at work. It accepted that Mr Walsh was at a substantial disadvantage because of fatigue, incontinence and travel difficulties. The tribunal rejected home working one day a week as not practicable for the site-based Clerk of Works role, but found that a reduction to a three-day working week was a reasonable adjustment supported by occupational health evidence. It held that the Respondent failed to make that adjustment.

On discrimination arising from disability, the tribunal found that the rejection of flexible-working requests and the continuation of the attendance process did not amount to unlawful unfavourable treatment, or were justified. It held that the dismissal was unfavourable treatment because of sickness absence arising from disability, and that dismissal was not proportionate because the Respondent should have tried part-time working first. The direct discrimination, indirect discrimination and harassment claims were dismissed. The harassment allegations failed because the tribunal treated the comments as plain speaking or robust management rather than conduct meeting the objective harassment threshold.

On unfair dismissal, the Respondent relied on capability as the reason for dismissal and the tribunal accepted that capability was a potentially fair reason. However, applying section 98(4) ERA 1996, it concluded that dismissal fell outside the range of reasonable responses because the employer had not followed the clear occupational health advice to allow part-time work, and the appeal stage did not cure that defect. No monetary remedy was determined in this liability judgment, and a remedy hearing was listed for 24 January 2022.