In person For the v Respondent — 2022

The claimant, Ms E Tilli, worked for Fresh & Wild Limited from 7 June 2010 until she resigned with immediate effect on 9 September 2019. The tribunal found that by May 2019 she had a disability within the meaning of s.6 EqA 2010, namely arthritis affecting her hips, spine and shoulders causing chronic pain, and that the Respondent knew or ought reasonably to have known that she was disabled. The tribunal relied on the history of symptoms, her period off work from January to May 2019, the medical letters produced in April and May 2019, and the discussions with Mr Patel.

On the reasonable adjustments claim, the tribunal accepted that the Claimant was disadvantaged by early and late shifts because her condition was worse in the mornings and evenings. It found that Mr Patel knew this by 8 May 2019 and that the Respondent could easily have avoided late shifts. The claim succeeded in respect of late shifts on Monday 20 May, Saturday 25 May, Tuesday 28 May and Thursday 30 May 2019. The tribunal rejected the wider complaint about heavy delivery days and also rejected the alleged failure to offer alternative work away from Mr Patel and Mr Lainez after the grievance, finding that point was not made out on the facts.

The direct discrimination and harassment claims failed. The tribunal accepted that Ms Birtalan made the comments relied on, and that Mr Lainez told the Claimant to speed up with delivery in front of colleagues, but found no evidence that Ms Birtalan knew or perceived the Claimant to be disabled and found that her comments were generic rather than disability-specific. It found Mr Lainez's comment was driven by longstanding performance concerns about timekeeping, pace and talking too long to customers, not by disability. For the same reasons, the tribunal held that the three comments did not amount to harassment related to disability. It also rejected the direct discrimination allegation based on the 11 June 2019 investigation and on the handling of the grievance.

The discrimination arising from disability claim succeeded only in relation to the late shifts. The tribunal found that scheduling the Claimant for those late shifts caused her loss of pay and amounted to unfavourable treatment because of something arising in consequence of her disability. It concluded that the treatment was not justified because the Respondent had failed to make the reasonable adjustments that were required. The tribunal dismissed the allegation that the 11 June 2019 investigation arose from disability, finding that the timekeeping and performance concerns were longstanding and not linked to her condition.

A major part of the reasoning concerned the Respondent's use of CCTV. The tribunal found that the Respondent used CCTV for performance and disciplinary purposes in a way that was not fair or transparent under Article 5(1)(a) and (b) of the GDPR, because the written materials told employees that CCTV was for security and theft-related purposes rather than for monitoring performance. It also found that Mr Lainez repeatedly accessed and copied CCTV footage to check the Claimant's movements, work pace and claimed medical condition, which was unnecessary and contrary to Article 5(1)(c). The tribunal further found that not providing a copy of the footage when the Claimant asked for her data was a breach of Article 15, although not by itself serious enough to amount to a repudiatory breach.