Ms A Thobarn, Union Representative For v Respondent — 2018

The tribunal found that Mr Kuppala was employed by HBOS as a bank manager at Oxford Circus and had been diagnosed with type 2 diabetes on 21 August 2017. It held that he was a disabled person by reason of diabetes from August 2017. The tribunal did not find that stress or depression on its own amounted to a disability, although it accepted that stress could exacerbate his diabetic symptoms.

In 2018 the Halifax branch underwent restructure and nearby branch closures increased pressure on the Oxford Circus branch. The tribunal accepted evidence that footfall rose, that the claimant and his team were under significant pressure, and that he was missing lunch breaks. It found that, on 30 April, 2 May and 10 May 2018, he failed to follow branch closing procedures, including failing to complete checks, leaving keys in the door, and on 10 May leaving a customer in the branch for three hours.

On the section 15 EqA 2010 claim, the tribunal found that the claimant’s uncontrolled diabetes and low blood sugar levels affected his concentration, lethargy and judgment, and were an effective cause of the failures to follow procedure. It accepted the respondent’s legitimate aim of branch security and customer safety, but held that dismissal was not a proportionate means of achieving that aim. The tribunal relied in particular on the absence of an Occupational Health referral, the lack of investigation into the effect of diabetes on the claimant’s functioning, and the fact that less discriminatory steps such as a final warning, training, and OH support had not been shown to be insufficient.

The tribunal also held that the respondent knew, or reasonably ought to have known, that the claimant was disabled. It found that the respondent was on notice that he had diabetes and was saying that it affected his functioning, but no proper medical enquiry was made. The tribunal found contributory conduct at 60% and assessed a 10% Polkey chance that he would have been fairly dismissed in any event. The judgment records those liability and percentage findings, but does not set out a quantified tribunal award in the extracted text.

On unfair dismissal, the tribunal accepted conduct as the potentially fair reason, but held that the dismissal was unfair because the investigation was not reasonable: the respondent failed to obtain Occupational Health advice and did not properly investigate the claimant’s mitigation concerning diabetes and increased footfall. It found that the appeal did not cure that defect, although it accepted that the appeal manager was appropriately trained and sufficiently senior. On wrongful dismissal, the tribunal held that the claimant’s conduct did not so undermine trust and confidence as to justify summary dismissal without notice, noting that he was allowed to continue working during the disciplinary process and that his conduct was not found to be wilful or deliberate.