In person For the v Respondent — 2017

The claimant, a black African employee with depression and migraines, had been absent from work from May 2015 and remained off sick until his dismissal in June 2016. The tribunal accepted that workplace issues had contributed to his illness and that occupational health reports in August 2015 and January 2016 said he was unfit for work and unlikely to improve until the workplace issues were addressed. It also found that a home visit by Mr Walters and Ms Bhaimia on 3 February 2016 took place without the claimant's express consent, although they assumed they had consent, and that subsequent sickness review and OH arrangements were handled in writing because the claimant did not engage with meetings.

The tribunal held that the reason for dismissal was capability arising from long-term absence and lack of engagement with the sickness review and occupational health process. Ordinary unfair dismissal therefore failed because capability was a potentially fair reason and the overall process, including written consultation and repeated attempts to obtain updated medical advice, fell within the band of reasonable responses. The automatic unfair dismissal case also failed: the March and May 2016 correspondence relied on as protected disclosures was found not to be made in the public interest and, in any event, did not play any part in the dismissal. The related statutory-right limb also failed.

Direct race discrimination and direct disability discrimination were dismissed. The tribunal found no evidence that Mr Walters dismissed the claimant because of race or disability, and it accepted that the comparator cases were materially different because those employees had engaged with management and occupational health. The discrimination arising from disability claim also failed: the tribunal treated the relevant treatment as justified or as arising from administrative error or oversight rather than from something in consequence of disability.

The claimant succeeded only on two disability discrimination heads. First, the tribunal found a failure to make reasonable adjustments in relation to allegation 10, because the respondent did not follow its own guidance to give ideally one month's notice before moving the claimant from full pay to half pay and then to nil pay, and that breach had a greater impact on someone with the claimant's mental health condition. Second, it held that limiting accompaniment at sickness review meetings to a union representative or workplace colleague was a PCP that placed disabled employees at a particular disadvantage and that it would have been a reasonable adjustment to allow Ms Babs to attend and participate. For the same PCP, the indirect disability discrimination claim succeeded on allegation 11. The tribunal said compensation would be assessed later and that the successful claims overlap.

The remaining claims were dismissed. The harassment complaints about the home visit and pressure to attend OH did not meet the statutory test, and the alleged fabrication about GP consent was not proved. Victimisation failed because none of the complained-of treatment was because of protected acts. The unlawful deduction claim and breach of contract claim both failed: the payroll issues were treated as administrative or contractual matters rather than unlawful deductions, and the tribunal did not accept that the respondent's conduct amounted to a breach of contract.