Mrs L Gentry, lay representative For the v Ms S Hobson, solicitor — 2020

The claimant, a long-serving delivery office manager, had been off work from January 2017 with stress, anxiety and depression linked to family difficulties. The tribunal found that by the time he returned to work in September 2017 he was disabled within the meaning of the Equality Act 2010, that the impairment had a substantial and long-term effect, and that the respondent ought reasonably to have known of the disability. The tribunal also held that the disability complaints were in time, either because they formed a continuing act or because it would in any event have been just and equitable to extend time.

On the claimant's return, the tribunal found that there had been no proper welcome-back meeting, no stress risk assessment, no occupational health referral, and no structured plan for his reduced-hours return. Fulham Delivery Office was under-resourced, with unstable management cover and staffing difficulties, and the claimant's workload was found to be unmanageable within the hours he was working. The tribunal upheld the reasonable adjustments complaint in relation to adequate managerial support, managerial cover for the reduced-hours arrangement, reducing the workload, the move to Victoria DO, delaying the disciplinary process until occupational health advice and stabilisation, and allowing Mrs Gentry to speak at the appeal hearing. It rejected some proposed steps, including treating a return-to-work interview or stress risk assessment as standalone adjustments.

The tribunal also upheld the discrimination arising from disability claim under s.15 Equality Act 2010. It found that the threat of commencing the SPI performance process, the move to Victoria DO, and the gross misconduct disciplinary process were unfavourable treatment arising from impaired performance, which in turn arose in consequence of the claimant's disability. The respondent relied on compliance with its Universal Service Obligation as a legitimate aim, but the tribunal held that the treatment was not a proportionate means of achieving that aim, particularly because reasonable adjustments with a real prospect of alleviating the disadvantage had not been made.

On unfair dismissal, the tribunal accepted that conduct was the reason for dismissal, but held that the dismissal was unfair under s.98(4) ERA 1996 and the Burchell approach. It found that Mr Cuomo should have obtained occupational health advice before deciding the case in the claimant's absence, and that the investigation was weakened by limited appreciation of the claimant's health and by incomplete consideration of the circumstances at Fulham DO. The appeal did not cure those defects. Although Ms Walsh carried out further investigations, the tribunal found that she did not fairly engage with the claimant's written response, effectively decided the case on a revised dishonesty-type basis not fairly put at disciplinary stage, and wrongly limited Mrs Gentry to observer status.