Mr Patel (counsel) For the v Respondent — 2023

Ms S Anrude worked for ACAS in the Duty Cover Team and the tribunal accepted that cerebral vasculitis, dystonic left hand and long Covid were disabilities within the Equality Act 2010. It found that ACAS knew of those conditions, and that from April 2020 long Covid caused extreme fatigue, headaches, mobility limits and brain fog. The main disputes arose during her attempted phased return to work in 2021, when she challenged the counting of sickness absence, the length of the phased return, the handling of return-to-work meetings, and the tone of management communications.

On absence management, the tribunal held that ACAS was entitled in principle to count long Covid-related absences from June 2021 and to retain a trigger point for attendance monitoring. It accepted that the claimant had already been given a higher trigger point of 16 days, but found that the continued counting of Covid-related absence was justified for business continuity and service delivery reasons. By contrast, it held that the fixed 12-week phased return rule put the claimant at a substantial disadvantage, because it was not in line with her GP's advice and meant she was required to progress faster than her condition allowed.

The tribunal also found that Ms Binns operated a practice of not permitting accompaniment at return-to-work meetings, which disadvantaged the claimant because of concentration and memory difficulties associated with her condition. It held that the claimant should reasonably have been allowed a companion at those meetings, and that scheduling the meetings so they could be attended with support would have been practicable. The tribunal treated the 28 July 2021 informal management advice letter as part of that refusal of support, and later accepted that the respondent changed its position only after the 8 September 2021 letter from Ms Harwood.

On harassment, only two allegations met the statutory threshold. The tribunal found that Ms Binns' 28 May 2021 email, sent after the claimant had said her own email was accidental, was a disproportionate and hostile response and that its length and content created an intimidating and humiliating environment. It also found that the 28 July 2021 informal management advice letter was unwanted, related to disability, and created a hostile and intimidating environment because it threatened disciplinary consequences if the claimant continued to seek accompaniment for return-to-work meetings. The colour-coded return-to-work plan, the 16 August informal concern meeting, the 20 August letter about the unsuccessful phased return, and the 27 October email were not found to amount to harassment.

Under section 15, the tribunal upheld the claims based on the 28 July letter, the 20 August 2021 email threatening a performance improvement period, and the decision on 20 August 2021 to curtail the phased return despite GP advice. It rejected the challenge to counting long Covid-related absences and the complaint about unaccompanied return-to-work meetings. Under section 19, it held that the 12-week phased return rule was indirectly discriminatory and not justified, while the Covid-absence counting policy was justified because ACAS was entitled to monitor attendance and service delivery.