Mr D Lamina, McKenzie friend For the v Respondent — 2018

The claimant, Mr F Agyarko, was employed by Asda Stores Ltd and sustained a back injury at work in November 2013. The tribunal found that he remained disabled by reason of a prolapsed disc, that the respondent knew of his impairment, and that after periods of adjusted work and sickness absence the respondent moved him into capability processes and later into a disciplinary process. It rejected the challenge to the 21 March 2018 sick pay comments and the decision to start capability proceedings, and it also found that the alleged requirement to continue driving after the March 2018 assessment was not made out because the claimant agreed to resume driving.

The claim under section 15 of the Equality Act 2010 succeeded only on issue 1.3. After the claimant raised a grievance about the 20 April 2018 meeting, Ms Sains resumed the investigation on 4 May 2018, concluded there was a pattern of absence, and the matter was referred on to discipline. The tribunal held that this was unfavourable treatment because of sickness absences arising in consequence of disability, and that it was not a proportionate means of achieving the respondent's legitimate aims of managing long-term absence, saving cost and management time, and planning the workforce with certainty. The tribunal considered that the claimant's reaction was linked to the way his grievance had been handled and that it was not proportionate to move the matter to disciplinary proceedings.

The reasonable adjustments and indirect discrimination claims failed. The tribunal accepted that the capability and disciplinary procedures were PCPs, but found that they did not put the claimant at a substantial disadvantage or a particular disadvantage. It also found that the alleged PCP requiring him to continue driving after the assessment was not established on the facts, because there was no imposed requirement and the claimant agreed to return to driving. The harassment claim failed because the tribunal did not accept that Ms Sains and Ms Smy shouted at the claimant or were very aggressive towards him on 20 April 2018, and in any event any friction was linked to the meeting starting late rather than to disability.

The victimisation claim also failed. The tribunal treated the September/October 2017 grievance as a protected act, and it also treated the 24 May 2018 grievance as a protected act, but it found that the alleged detriments were not because of protected acts. It did not accept that the 20 April 2018 grievance was a protected act. A remedy hearing was to be listed separately, and the tribunal indicated provisionally that the successful section 15 claim was likely to attract injury to feelings only, with no financial losses flowing from the unlawful act, and that any award would probably be in the lower Vento band or the lower range of the middle band.