Representing himself For the v Respondent — 2023

The claimant, who had the disabilities of depression and fibromyalgia at the material time, brought disability discrimination claims concerning attendance management action and disciplinary process delay. The tribunal held that issuing a first written notice of expectation of attendance on 25 July 2022, refusing the appeal against it on 1 September 2022, issuing a second and final written notice of expectation of attendance on 24 July 2023, and refusing the appeal against that notice were unfavourable treatment because of disability-related sickness absence. However, it found that the respondent's aims of ensuring efficient delivery of its service and making good use of public funds were legitimate aims, and that each attendance-management decision was a proportionate means of achieving those aims.

For the first notice, the tribunal took into account the claimant's distress, the fact that some absences were linked to the earlier attendance process and bereavement, and the effect of his absence on specialist CLTT work that only he could do. It concluded that the notice was only a first-level statement of attendance expectations, that a 12-day consideration point had been agreed, that other adjustments had been made, and that the respondent was entitled to flag future attendance expectations. The tribunal also found that the appeal refusal was proportionate for the same reasons. It separately held that the first notice and appeal claims would not have been allowed out of time: ACAS was notified on 26 September 2023, and those acts occurred on 25 July 2022 and 1 September 2022.

For the second and final notice, the tribunal found that the claimant had 76 days of further disability-related absence after the first notice, including a 70-day period from 17 February 2023 to 25 May 2023. It rejected the claimant's argument that the Attendance Management Policy did not permit the respondent to count long-term disability-related absence toward the consideration point or to hold the second review. The tribunal found that the process followed was fair and proportionate, that this was not a dismissal, and that the respondent could not be expected to allow long periods of absence without managing future attendance expectations. The appeal refusal was also found proportionate, including because the appeal manager corrected the part of the notice referring to non-disability-related absence.

The reasonable adjustments claims concerned alleged significant delay in two disciplinary processes. For the first disciplinary process, the tribunal accepted that the period from 20 July 2023 to 12 September 2023, and the overall period to the disciplinary hearing on 14 November 2023, involved significant delay and that such delay would have placed the claimant at a substantial disadvantage by exacerbating his depression and anxiety. The claim nevertheless failed because the tribunal found no provision, criterion or practice of allowing significant delays: the delay arose from a unique combination of documents, holidays, another formal process, the need to find a decision-maker, and later the claimant's request for a different decision-maker. For the second disciplinary process, the tribunal found the seven-week overall timescale was not a significant delay and was reasonable.