in person For the v Respondent — 2023

The claimant started work as a Supply Chain Officer on 15 July 2019. He identified as black African. The dispute arose after he tested positive for Covid-19 on 17 January 2021, was assigned to work at the Tower from 1 February 2021, later moved to P3 from 1 April 2021, and raised repeated concerns about his health, the workplace environment, and the respondent's response to those concerns. The tribunal held that complaints before 21 March 2021 would have been out of time unless they formed part of a continuing course of conduct, but found that the claims did form part of a continuing course and, alternatively, that it would be just and equitable to extend time.

On disability, the tribunal found that the claimant was exhibiting symptoms consistent with Long Covid by 13 April 2021 and that those symptoms had a substantial adverse effect at that date, but held that the effects were not shown to be long term during the material period. It rejected the claimant's case that he had a third Covid infection in April 2021, found no objective evidence that anxiety and depression were established as disabling conditions in the relevant period, and concluded that the claimant did not satisfy the definition of disability under s.6 Equality Act 2010 during the material period. The tribunal also held that the respondent did not have actual or imputed knowledge of any disability before the OH report of 13 April 2021.

The direct disability discrimination claim failed because the tribunal found the treatment complained of was not because of disability. It accepted that the claimant's colleagues complained that he was not working as hard as them and that some meetings became difficult, but found those reactions were directed to his perceived lack of contribution and attitude, not to disability. The harassment claim failed for similar reasons: the questions at the 7 May 2021 meeting were found to be appropriate in context, and the tribunal held that the conduct alleged did not meet the statutory test. The victimisation claim failed because the 8 February 2021 email was not a protected act, as it did not specifically allege disability or race discrimination.

The reasonable adjustments claim failed. The tribunal accepted that requiring some employees to work at the Tower was a PCP, but found that the claimant had not shown substantial disadvantage compared with non-disabled workers at the point of deployment and, in any event, the respondent moved him to P3 in order to reduce the impact on him. It further found that the complaints about social distancing, Covid zones, PPE, training, lifts, workload, phased return, and manual handling were not made out on the evidence, and that the respondent had taken reasonable steps in the circumstances of a hospital environment operating during the pandemic.

The race discrimination claims also failed. For direct race discrimination, the tribunal found no evidence that the claimant was treated less favourably because of race in relation to complaints management or return-to-work arrangements. For indirect race discrimination, it accepted the Tower-working PCP applied to both black and white employees, but rejected the proposition that black African employees were shown to be at a particular disadvantage from Covid in the way alleged, noting the absence of statistical or expert evidence and declining to take judicial notice of the broader risk proposition advanced by the claimant. It found the PCP pursued the legitimate aim of meeting service needs during the pandemic and was proportionate.