Ms S Bowen - Counsel v Respondent — 2017

The claimant worked as a warehouse operative at the Dartford distribution centre from 1 July 2002 until he resigned on 20 August 2016. After a workplace accident in 2010 and a further road traffic accident in 2012, he had been kept off picking duties from June 2011. The respondent later conceded that his back condition was a disability, that it knew of that disability, and that his grievance of 14 March 2016 was a protected act. The tribunal limited its findings to events after the 7 April 2015 COT3 because the claimant did not seek to set it aside.

From March 2015 onwards the tribunal found that the medical evidence was conflicted, but the respondent never carried out the workplace assessment recommended by occupational health on 20 March 2015 and never obtained a report from the pain consultant despite having the claimant's consent. It found repeated problems in the capability and disciplinary meetings, and concluded that the respondent failed to follow its grievance procedure, including the requirement for a more senior manager to hear a grievance about a general manager and the normal five-day timetable. Part of the grievance was upheld when Mr Fielding accepted that Mr Coker should have told the claimant that the capability process had ended.

On section 15 Equality Act 2010, the tribunal held that the claimant was subjected to heavy-handed and intimidatory disciplinary and capability proceedings and to withholding of company sick pay, both of which were unfavourable treatment arising from his inability to carry out picking duties. The respondent's proportionality defence failed. The tribunal also found disability-related harassment in some of the meeting conduct, including comments by Mr Town that the claimant did not look as if he were in pain and was being deliberately unhelpful to MSK.

The section 19 indirect discrimination claim failed because, although the tribunal accepted that the respondent applied a PCP that employees were expected to carry out 100% of their contractual duties, it found that the pleaded particular disadvantage was not clearly identified. The section 20 reasonable-adjustments claim failed because the claimant had already been kept off picking duties as an adjustment and no refusal to modify duties, targets, or retrain or redeploy him was proved. The section 13 direct discrimination claim also failed because the tribunal considered that a hypothetical comparator unable to do picking would probably have been treated in the same way. The victimisation claim succeeded only so far as the company sick-pay decision was caused by the March 2016 grievance; the earlier capability steps predated that protected act.

The tribunal held that the cumulative handling of the capability, disciplinary, grievance, and sick-pay issues breached the implied term of trust and confidence, that the breach caused the claimant to resign on 20 August 2016, and that the constructive dismissal was unfair. The separate notice-pay claim succeeded in principle, but the amount was left to the remedy hearing. No monetary award was fixed in the reserved judgment, and the parties were told to seek a remedy hearing if they could not settle within 28 days.