In person For the v Respondent — 2022

Mr Kavanagh worked as an SEO Lead for Harrods from 17 June 2019 to 9 August 2021 under Ms Cindy Cheng. The tribunal found performance concerns had arisen from February 2020, that objectives were set at appraisal in June 2020, and that the respondent delayed formal action until 4 December 2020 while trying to give him time and support. It also found the PIP document was detailed and clear, and that the respondent made several adjustments during the process, including regular reviews, extra time, partial office attendance, and removal of line-management duties.

The tribunal held that Mr Kavanagh was not a disabled person at the material time. It found that anxiety was a reaction to adverse life events, not a long-term impairment with a substantial adverse effect on normal day-to-day activities, and that depression was not established as a separate impairment. On that basis the disability discrimination claim failed. Had that finding been wrong, the tribunal said the direct discrimination, discrimination arising from disability, indirect discrimination, and reasonable adjustments complaints would still have failed because the treatment complained of was performance management, there was no evidence of group disadvantage, and the respondent had taken reasonable steps to avoid disadvantage.

On the individual discrimination allegations, the tribunal found the 25 March 2021 Teams message, the training feedback, the comments about clarification questions, the 30 March 2021 meeting, the PIP, and the final written warning were all genuine performance-management steps or factual feedback, not treatment because of disability or something arising from disability. It found the Occupational Health recommendation that the PIP be concluded where possible as quickly as possible did not require the respondent to stop the PIP, and that the respondent was entitled to manage ongoing underperformance.

The constructive unfair dismissal claim also failed. The tribunal found no fundamental breach of the implied term of trust and confidence, and said the respondent was contractually entitled to run the PIP and disciplinary process. It found that, even if there had been a breach, the claimant affirmed it by waiting about 2.5 months to resign, and that the resignation on 13 July 2021 was not caused by the warning or the PIP but by his plan to take a job in South Korea, which the tribunal found had been in contemplation by March 2021.