Mr J Cook, Counsel For v Mr M Duggan, Queen’s Counsel — 2019

The claimant was employed as Night Manager from January 2010 and became Senior Night Manager in 2012. The tribunal found that his earlier complaints in late 2013 and early 2014 were about working a number of nights in a row to cover absences, not about night work generally. After he became absent from work in August 2016 with anxiety and later anxiety/depression, the parties discussed a return on day-time duties, including Senior Receptionist, Purchasing Manager and Security roles.

By May to July 2017 the claimant had made clear that he wanted a daytime role with some management element and a phased return. On 30 May 2017 Natalie Tait said he would be considered if a day-time managerial role became available. When Front of House Manager and Assistant Front of House Manager vacancies were filled in early July 2017, the tribunal found that the claimant had not been informed of the Assistant Front of House Manager vacancy and had not been considered for it. It held that the Front of House Manager role and the revised Purchasing Manager role were not suitable for him, but the Assistant Front of House Manager role was suitable and closely comparable to his existing work.

The tribunal found that a provision, criterion or practice requiring daytime managerial staff to work full time and/or variable hours put the claimant at a substantial disadvantage because he was absent from work and could not immediately slot into a full-time role. The reasonable adjustment should have been to appoint him to the Assistant Front of House Manager role on a phased return, with any necessary training or refresher training. It accepted that salary protection at his former Senior Night Manager rate was not a reasonable adjustment in the circumstances because that role carried a night-work premium and he could no longer work nights.

The respondent's decision on 27 July 2017 to treat the contract as frustrated was rejected. The tribunal held that frustration could not apply where the duty to make reasonable adjustments had not been met. It also held that the claimant had been dismissed, that the dismissal was unfair because no appeal was offered and a suitable alternative role existed, and that the dismissal was discrimination because of something arising in consequence of disability because the claimant's absence and need for a phased return led to the decision not to appoint him. The direct disability discrimination claim failed. The tribunal found that the offers of Senior Receptionist, Purchasing Manager and Security roles were not less favourable treatment because of disability, and that the non-appointment to Front of House Manager and Purchasing Manager roles was due to suitability, not disability. The harassment claim and the unlawful deductions/breach of contract claim were withdrawn. This judgment is liability-only and does not quantify compensation or any other monetary award.