Miss D Gibbons v 1) Mr K Chinambu & 2) Nationwide Building Society — 2021

The claimant, a long-serving Nationwide employee, was accepted to be disabled by reason of a Haemoglobin CC blood condition and a spinal injury. The tribunal reviewed a long history of adjusted duties at Wandsworth, occupational health referrals, performance ratings, TOIL disputes, and escalating disagreements between the claimant, the First Respondent and other managers. It found that the relationship in the branch deteriorated over time, but most of the claimant's disability-related complaints did not meet the legal tests applied to them.

On harassment, the tribunal rejected the complaints based on the 2013 meetings, the AWOL note, the TOIL and appointment disputes, the alleged comments to managers, and later communications and investigations. It accepted some matters as facts, including that a December 2013 meeting raised the possibility that the adjusted role might be removed and that comments had been deleted from a March 2015 1:1 record, but held that these were not shown to be unwanted conduct related to disability that amounted to harassment. Several of the allegations were also treated as out of time.

On discrimination arising from disability, the tribunal found that the January 2015 appraisal rating was factually linked to disability-related absence, but the complaint was dismissed because the allegation was out of time. The indirect discrimination complaint also failed: the tribunal accepted only the appraisal targets/rating PCP, found no sufficient evidence that disabled workers as a group were put at a particular disadvantage, and in any event held that the PCP was a proportionate means of achieving the legitimate aim of maintaining performance standards. The reasonable adjustments complaint failed for similar reasons, because the tribunal did not find the necessary substantial disadvantage on the facts it accepted.

The victimisation complaint failed. The tribunal accepted that the claimant had done protected acts, including grievances and Equality Act claims, but found no causal link between those acts and the later treatment relied upon. It recorded that some of the earlier grievances were partially upheld, but it did not accept that the later decisions were taken because she had complained under the Equality Act.

The unfair dismissal claim succeeded. The tribunal found that the principal reason for dismissal was some other substantial reason, namely the irretrievable breakdown of working relationships at Wandsworth combined with the claimant's inability to work elsewhere because of her health restrictions. It held, however, that the dismissal process was both procedurally and substantively unfair because the respondent relied on out-of-date and confidential mediation material, did not give the claimant a proper opportunity to answer the case against her, and did not make adequate contact attempts before proceeding in her absence. No Polkey reduction or contributory fault reduction was made, and the tribunal listed a remedy hearing to follow.