Mr A Zelik v Say Fromage Limited Heard — 2021

The claimant worked as a Driver/Technician from 8 September 2016. He had complained privately of backache from about Christmas 2017, but he did not tell the respondent about it at the time and continued working. On 22 May 2018 he injured his back while dismantling a new Classic Booth, and on the following day he emailed Lisa Howard describing the injury and saying that manual handling training should have been in place and that two trained people should handle such heavy equipment. He remained off work on fit notes recording low back pain and chronic low back pain, and he was discharged by his osteopath on 28 July 2018 with self-care advice.

On the disability discrimination claim, the tribunal accepted that the 22 May 2018 injury was a physical impairment causing pain, mobility difficulties, disturbed sleep and difficulty with normal day-to-day activities. It held, however, that the substantial adverse effect had lasted only 90 days by 20 August 2018, or 104 days if the last fit note expiring on 3 September 2018 was taken into account. Applying Richmond Adult Community College v McDougall and SCA Packaging v Boyle, the tribunal was not satisfied that it could well have lasted for at least 12 months, and concluded that the claimant was not disabled at relevant times. It also said that, even if wrong on disability status, the respondent did not have actual or constructive knowledge, because the information available pointed to a back injury and absence from work rather than a condition likely to meet the Equality Act definition.

The tribunal reviewed the fit-to-work process, the meeting on 20 August 2018, and Lisa Howard’s decision to dismiss with immediate effect and pay in lieu of notice. It accepted that the claimant refused consent for GP records, did not attend the meeting, and did not provide further information. It held that the respondent’s failure to refer him to occupational health was not unreasonable in the circumstances, including the small size and financial position of the business and the likelihood that any adviser would need GP information. Because the claimant was found not to be disabled, the tribunal dismissed the claims under section 15 and for failure to make reasonable adjustments.

On whistleblowing, the tribunal assumed for the purpose of its reasoning that the claimant’s emails of 23 and 24 May 2018 disclosed information capable of protection and that the fit-to-work process, dismissal and payment in lieu of notice could be detriments. It found, however, that the reasons for the treatment were to manage sickness absence, obtain medical information and end the employment relationship, and that the grounds were not in any way informed by the protected disclosures. The whistleblowing claim was dismissed. The tribunal determined liability only, so no remedy hearing or monetary award followed.