Miss S Berry (Counsel) For the v Respondent — 2020

Miss Billing worked as a driving examiner from 1983, mainly at Morden from 2000. The tribunal accepted that she had a clean disciplinary record and long service, but also recorded a history of complaints about her manner to candidates and managers, together with occupational health involvement from 2013 onwards. By 2017 the respondent was dealing with repeated complaints, an informal performance plan, an investigation led by Mr Neave, suspension on 20 July 2017, a disciplinary hearing chaired by Ms Galton, dismissal without notice on 17 November 2017, and an unsuccessful appeal.

For unfair dismissal, the tribunal accepted that the real reason for dismissal was conduct: what the respondent regarded as unacceptable behaviour towards Mr Brick and test examinees. The dismissal was nonetheless unfair because the investigation and disciplinary process were not reasonable. The claimant was not properly questioned about the fist-punching allegation, was not re-interviewed after witness accounts were taken, and the investigation did not adequately explore her account that ADIs were encouraging complaints or the possible effect of mental health issues. A further OH report was not sought.

The tribunal also held that Ms Galton approached the disciplinary hearing with a closed mind, gave little weight to the claimant's long service and clean record, dismissed Mr Cogo's proposed support, did not discuss or consider reasonable adjustments, relied on pre-2014 material that had not been put to the claimant, and used her own closeness to the events as a witness to one of the incidents. In those circumstances the dismissal fell outside the band of reasonable responses. The wrongful dismissal claim also succeeded because the tribunal was not satisfied, on the evidence before it, that repudiatory conduct justifying summary dismissal had been proved.

The direct disability discrimination claim failed because the tribunal found that the respondent acted because it believed the claimant had committed misconduct, not because she was disabled. The tribunal did, however, accept the disability link between the claimant's condition and her tendency to become frustrated, angry, and aggressive, which mattered to the other Equality Act claims.

The reasonable adjustments claim succeeded. The tribunal held that the dignity-at-work standards and the practice of proceeding once complaints reached a certain level placed the claimant, as a disabled person, at a substantial disadvantage because her condition made it more likely that she would react in ways that generated complaints. Reasonable adjustments would have included postponing the outcome pending further OH input, implementing OH suggestions such as bereavement counselling and psychotherapeutic or anger-management support, working with Mr Cogo, and providing a buddy.

The section 15 claim for unfavourable treatment because of something arising in consequence of disability succeeded because dismissal was not proportionate, although the tribunal accepted that the suspension and investigation were proportionate. The tribunal took into account the claimant's long service, the failure to implement OH recommendations or reasonable adjustments, and the overall context. The indirect discrimination claim failed because the tribunal did not have evidence of group disadvantage. Remedy was left to a later hearing, including any Polkey or contributory fault issues, so no award was set in this judgment.