Ms L Simpson, Counsel For the v Respondent — 2022

Mrs L Milligan worked part-time from home for Love My Human Ltd from February 2019. The tribunal accepted she had Long Covid with fatigue and breathing difficulties, and found that by summer 2022 Ms Matthews knew, or reasonably ought to have known, that the claimant was disabled for Equality Act purposes. It also accepted that the claimant would be exhausted by a three-hour commute and by shop-floor duties, so she could not undertake those tasks.

Following shareholder discussions about costs and staffing in early August 2022, Ms Matthews told the claimant on 8 August 2022 that her part-time role was being questioned and that it was very likely the company would have to lose her. The tribunal held those messages did not themselves amount to a dismissal because they referred to a future event and did not specify a termination date. The claimant was later dismissed by letter dated 2 September 2022 with effect from that date.

On unfair dismissal, the tribunal found there was a redundancy situation because the respondent no longer needed as many employees to do the administrative work the claimant had been doing. However, it held the dismissal was unfair because the decision to dismiss had already been made before any genuine consultation, there was no consultation on pool or alternatives before that decision, the claimant's response was not properly considered, and no appeal was offered. It therefore upheld the unfair dismissal claim.

On the disability claim, the tribunal accepted that the claimant's inability to attend the offices arose from her disability, but found that this was not the reason for the dismissal. It held Ms Matthews decided to dismiss the claimant because the administrative role itself was not needed, regardless of location, and that she was not otherwise aggravated by home working. The tribunal also found that the offer of a part-time sales assistant role was genuine and that any reference to childcare meant the claimant's son, not her disability, was in Ms Matthews' mind. The discrimination arising from disability claim was dismissed.

The part-time worker detriment claim was also dismissed. Although the claimant was the part-time employee selected and Mr Milligan was not, the tribunal found they were not carrying out the same work in practice, that the respondent retained other part-time workers, and that the real reason for the dismissal was the perceived absence of need for the claimant's administrative role rather than her part-time status. On remedy, the tribunal made only Polkey findings at liability stage: the majority held it was 60% likely the claimant would have been dismissed anyway had a fair procedure been followed, while the minority considered there was a 60% chance she would have been retained. A remedy hearing was to follow, so no award was determined in this judgment.