Mr J Wallace, Counsel For the v Mr J Gilbert, Litigation Consultant — 2017

The claimant, Mrs Anna Ketlinska, brought combined disability discrimination proceedings under sections 13, 15, 20-21 and 26 of the Equality Act 2010, together with protected disclosure detriment and wage claims that were later withdrawn. The tribunal found that she suffered anxiety and some periods of depression during the relevant period, but the majority held that she became a disabled person only from 24 August 2017, when her GP recorded depression and issued a three-month fit note. Dr V Weerasinghe dissented and would have found that she was disabled from 25 May 2017.

Applying the majority finding on disability, the tribunal held that the Respondents had knowledge of disability by 24 August 2017. It accepted that the Claimant was substantially affected in day-to-day activities, but also considered that some of her descriptions of events were overstated when compared with contemporaneous records and other witnesses. On that basis, allegations relied on before 24 August 2017 were outside the period in which the majority found her to be a disabled person.

The section 15 claim succeeded in part. The tribunal held that the pre-24 August allegations, including the 19 July meeting issues and the alleged accusation of lying, could not succeed. It did, however, find unfavourable treatment arising from disability in relation to the Claimant's absence from work from 24 August 2017 onward, the non-payment of the November 2017 bonus, the non-payment of wages from 24 August onward, and the decision to hold the 24 November 2017 disciplinary hearing in her absence without an in-person opportunity to make representations. The dismissal on 30 November 2017 was not found to be because of disability, because the tribunal found Mr Piggott had already decided to dismiss on the evening of 10 July 2017 for reasons connected with the relationship breakdown and the Claimant's conduct.

On reasonable adjustments, the tribunal accepted the PCPs relied on by the Claimant, including requirements to comply with management instructions, remain in meetings, work from the office or client sites, work 9am to 6pm, and have bonus payments linked to utilisation. It held that the proposed adjustments arising from the 19 July meeting could not succeed because those matters pre-dated disability, and it was not satisfied that the office/client-site and reduced-hours requirements themselves caused a substantial disadvantage. It did find a substantial disadvantage in pressing ahead with the disciplinary hearing when the Claimant was absent and in the utilisation-based bonus approach, and said that a different basis for assessing the bonus should have been considered.

The direct disability discrimination claim failed because the tribunal did not find that the challenged actions were less favourable treatment because of disability. The harassment claim also failed: although the tribunal accepted that Ms Hernandez's disbelief of the Claimant's account of the 19 July meeting was unwanted conduct related to disability, it held that this did not cross the Dhaliwal threshold for harassment. No monetary remedy was recorded in the judgment.