Miss A Ahmad, Counsel For the v Respondent — 2018

The claimant, a social worker, was found to have been acting as a Group Manager by custom and practice by February 2016, but the tribunal held that when she signed the new contract on 18 August 2017 she accepted a new role as Case Manager Court Proceedings at grade PT6, with no change in pay. The tribunal held that this varied the contract and ended the earlier one, so complaints based on matters before that date could not found the constructive dismissal claim. Disability was conceded and the tribunal accepted that the claimant had osteoarthritis and hip replacements.

On the post-August 2017 events, the tribunal accepted that Ms Whiting reacted angrily when the claimant gave very short notice of her planned surgery and 12-week absence in November 2017, and that she wrongly told the claimant at first that she should make up time for physiotherapy appointments. HR later corrected that position. The tribunal found that the work instructions before surgery, the occupational-health process, the sickness-review correspondence, and the 1 May 2018 texts did not amount to fundamental breaches, either individually or cumulatively. It also found that the claimant deliberately removed the date from her consultant's letter so that Ms Whiting would not see how much notice she had actually had of the operation date, and treated that conduct as gross misconduct for the respondent's defence, but there was no actual dismissal.

The disability discrimination claims failed. The tribunal found that the claimant's predicted absence for surgery, and her actual absence until 30 April 2018, arose in consequence of disability, but her physiotherapy appointments did not. It held that the make-up-time instruction, the 8 November 2017 meeting, and the 27 April 2018 letter were reactions to late notification and poor communication, not treatment because of disability or its consequences, and that the 1 May texts were not unfavourable treatment. The 27 April letter was found to breach the respondent's seven-day notice policy and to be admonishing, but not repudiatory. The reasonable-adjustments claim failed because the pleaded PCP of requiring attendance at the OH venue was not made out, and in any event a telephone assessment was sought. The harassment claim failed for the same reason: the conduct was not legally related to disability. The notice-pay and unlawful-deduction issue was left for the remedy hearing listed for 21 October 2021 if the parties could not resolve it.