Mr Dom Aitchison v Transport for London — 2020

The claimant was employed as a Senior Commercial Manager and went off sick after workplace difficulties, including complaints by team members, transfer of a project, and the proposed probationary review. The respondent accepted that anxiety, OCD and depression amounted to a disability at dismissal, and the tribunal found that the respondent knew or ought to have known of the anxiety and OCD from early in the employment.

For the s.15 claim, the tribunal accepted that sickness absence, communication style, long emails, detailed drilling into matters, team complaints and perceived unsuitability for senior management were connected with the claimant's disability and influenced the dismissal. It found, however, that the respondent had a legitimate aim of requiring senior managers to meet the relevant performance, conduct and competency standards, and that dismissal was proportionate because the requested adjustments would have involved a substantial departure from the role's requirements.

The tribunal dismissed the direct discrimination and reasonable adjustments claims. It found no evidence that the dismissal was because of disability itself, and found that the proposed adjustments, including discounting absence, written instructions, recording meetings, modified duties, redeployment and an external Occupational Health assessment, either did not address the relevant disadvantage or were not reasonable in the circumstances.

The victimisation and whistleblowing claims were also dismissed. The tribunal found that the decision makers' reasons were the performance, conduct and attendance matters they gave, and that they were not materially influenced by the claimant's Equality Act complaints, Occupational Health complaints, tribunal claim, or alleged protected disclosures. The notice pay claim failed because the tribunal found the claimant had not passed probation and the contractual right to longer notice was inseparable from passing probation.