Mr T Moore (Counsel) For the v Respondent — 2020

This was a liability-only judgment in a dispute between a regulatory consultant and a small start-up investment fund. The tribunal found that the claimant was disabled by reason of bipolar disorder. It also recorded that the witnesses on both sides were unreliable in different ways, but made findings only on the claims before it and not on the later dismissal process. The judgment does not quantify the monetary remedy in this decision.

On the wages claim, the tribunal accepted that Mr Brennan-Banks reasonably believed on 18 February 2019 that the claimant was unwell after their telephone conversation, and it accepted that the initial decision to place her on sick leave was made in good faith. However, after the claimant's 22 February 2019 email and the medical evidence showing that she was fit to work, the respondent had no contractual basis to stop paying her. Clause 11 of the employment contract did not make pay conditional on an occupational health examination, so the unlawful deduction from wages claim was upheld for 20 February 2019 to 23 July 2019.

For discrimination arising from disability under section 15, the tribunal held that the original decision to put the claimant on sick leave could be justified on health and safety grounds because the respondent believed she was experiencing a bipolar episode. The continuation of that position became disproportionate once the claimant said she was well enough to work, her GP confirmed her diagnosis and fitness, and later the respondent's own occupational health doctor said she had been fit to work for the previous six months. The separate section 15 allegation relating to the conduct of the 14 March 2019 without prejudice meeting was not upheld: the tribunal found there was no refusal to arrange occupational health at that stage, no pressure to accept a derisory offer, and the challenged comment about setting the respondent up and suing for discrimination was not treated as treatment because of something arising in consequence of disability.

On direct disability discrimination, the tribunal upheld the claim in relation to continuing to keep the claimant on sick leave from 22 February 2019 to 23 July 2019. It also upheld the claim in relation to the comment at the 14 March 2019 meeting that she had transitioned from contractor to employee in order to set the first respondent up and sue for discrimination since summer 2018, finding that the comment was at least partly motivated by her disability because it referred to her having withheld her diagnosis. The remaining direct discrimination allegations from the meeting were dismissed. The tribunal held that liability lay with the first respondent because the relevant acts were taken collectively on its behalf, rather than by any one individual respondent alone.