Mrs W Y Leung v Waterfront Medical Cleaning Services South East Limited — 2024

Mrs Leung worked for Waterfront Medical Cleaning Services South East Limited from 24 September to 12 November 2020 as a cleaner at GP surgeries. The tribunal accepted that she had dyspraxia and was disabled at all material times, but found that she did not raise the condition contemporaneously as the reason she was slow at work; instead, she repeatedly pointed to workload, equipment and task allocation.

On the dismissal issues, the tribunal found that the claimant was dismissed verbally on 12 November 2020 because of capability concerns and third-party pressure from the surgery, not because of protected disclosures. It found that several probation-related letters were created after the event to bolster the respondent's position, but that did not change the tribunal's conclusion on the principal reason for dismissal. The section 103A automatic unfair dismissal claim therefore failed.

The tribunal accepted three protected disclosures in part: the report to Ms Middleton about the vaccine fridge alarm, the part of the 21 October 2020 report to Ms Ivanova that Max was not fully following cleaning and disinfecting requirements, and the part of the 13 November 2020 grievance to the practice managers about the vaccine fridge alarm. The protected disclosure detriment claim succeeded only on allegation 17.9, where the tribunal found Max's shouted outburst on 23 October 2020 was materially influenced by the disclosure about his work. The remaining whistleblowing detriment allegations were dismissed.

The equality victimisation claim succeeded in part after the 13 November grievance. The tribunal found that Mr Killone created or used probation documentation after the grievance, and that he deliberately handled the grievance and appeal process so the claimant would not attend or be able to pursue an appeal. The tribunal dismissed the allegations about dismissal itself, and also dismissed the pay-slip and post-12 November email allegations.

All disability discrimination claims failed. The tribunal found that the respondent did not know, and could not reasonably have known, that the claimant had dyspraxia before dismissal, and that the claimant had contemporaneously explained her difficulties by reference to workload, equipment and the way the work was organised. It therefore dismissed the direct discrimination, section 15, indirect discrimination, harassment and reasonable adjustments claims. The race discrimination and race harassment claims were also dismissed because the tribunal found the treatment was not because of the claimant's Hong Kong race or nationality, and rejected the alleged Bulgarian-language PCP.

The tribunal upheld the unlawful deduction of wages claim in the sum of £43.20. It dismissed the holiday pay and breach of contract claims, and listed the matter for a further remedy hearing on the successful whistleblowing and victimisation claims, noting that any award on those claims was likely to be limited at first blush to injury to feelings.