MS J MCCARTHY v Sainsbury’s Supermarkets Limited — 2020

The claimant was accepted to be disabled by depression, severe anxiety and complex PTSD. The tribunal found that the respondent's reference to a possible lower grade C3 role, in the context of the claimant's disability-related absences and inability to keep to a fixed workplan, was unfavourable treatment because of something arising in consequence of disability. Although the respondent had a legitimate aim connected with safeguarding the claimant's wellbeing and supporting a return to work, raising that option in the way and at the time it did was not a proportionate means of achieving that aim. The separate allegation about forwarding the Occupational Health report to a senior manager failed.

The reasonable adjustments claim succeeded. The respondent accepted it applied a PCP requiring reliability by working to a fixed workplan and accepted substantial disadvantage. The tribunal found the respondent knew of that disadvantage when the claimant was required to take sickness absence rather than work from home, and that allowing home working when she could not attend the office would have minimised or mitigated the disadvantage.

The harassment claims were dismissed. The tribunal accepted that several matters were related to the claimant's disability and that the claimant experienced them as distressing, but held that, viewed objectively and in context, the conduct did not amount to harassment under the Equality Act 2010. The victimisation claim was also dismissed because the tribunal found the errors and delay in handling the grievance were not because of the claimant's protected act.