In person For the v Mr A Gibson (Solicitor) — 2023

The claimant was employed as a healthcare assistant on a forensic medium security ward from 12 November 2018, subject to a six-month probationary period. The tribunal dismissed all Equality Act claims. It found that the claimant was a disabled person for Equality Act purposes by reason of mental impairment during the employment, and that the respondent only had knowledge of that mental health condition from the GP certificate dated 15 January 2019.

On sex discrimination, the tribunal accepted that there was unwanted physical contact on 13 December 2018 when FT admitted that she had jabbed the claimant in the ribs, and it considered that a complaint by a woman about a man would likely have been treated more seriously by a public sector employer. However, it accepted Ms Burleton's explanation that she investigated the incident, interviewed the relevant witnesses, moved FT away from the claimant, kept them apart, and recommended mediation because she did not consider the matter serious enough to warrant disciplinary action. The short letter telling the claimant there was 'no case to answer' did not lead the tribunal to find that sex played any part in the decision.

The remaining sex discrimination complaints, including the incidents on 28 December 2018, the flexible working request, the instruction to put concerns in writing, the asserted appeal, the grievance handling, and the dismissal, were all rejected. The tribunal found no evidence that the claimant was treated less favourably because he was a man. It accepted that the dismissal was based on poor attendance during probation, relationship issues on the ward, and concerns about computer use, and that the appeal later upheld the dismissal.

On disability, the tribunal found that the claimant had an underlying pattern of anxiety and depression and that his mental health deteriorated after the December 2018 incident, but it held that the respondent could not be liable for the earliest allegations because it did not know of the mental health condition until 15 January 2019. It rejected the direct disability discrimination allegations that followed for the same reasons as the sex claims. It also dismissed the reasonable adjustments claim, finding that the respondent's proposal of four weeks of nights followed by two weeks of days, with review, was a reasonable compromise and that the claimant had not shown a breach of section 20.

The victimisation claim also failed. The tribunal accepted that the grievance lodged on 10 May 2019 was a protected act, but it found that the grievance was properly investigated and that the recommendation to terminate probation had already been made before the grievance was lodged. It concluded that there was no detriment caused by the protected act and no causal link between the grievance and the dismissal. No remedy was awarded.