Ms E Taylor-Valles v Her Majesty’s Passport Office — 2021

The claimant, Ms E Taylor-Valles, worked as a Customer Services Agent at the Passport Office in Liverpool. The respondent accepted that she was disabled by asthma. After a sickness absence in June and July 2018, her probation was extended and she was given a warning under the attendance procedure. The tribunal treated the case as turning on two reasonable-adjustments PCPs, a series of discrimination arising from disability complaints, victimisation, harassment, and the section 109(4) reasonable-steps defence. It held that the duty to make adjustments had arisen by 18 July 2018 on PCP1, and later on PCP2 when occupational health advised that prolonged walking in cold weather could aggravate her symptoms.

PCP1 failed. The tribunal accepted that the attendance threshold put the claimant at a substantial disadvantage because asthma could lead to more absence, but it held that the suggested adjustments were not reasonable in the circumstances. It found that the claimant could not have returned earlier in June and July 2018, so the policy's automatic disability-absence exception did not apply, and it was not reasonable to require all disability-related absence to be disregarded, to treat absences as spells rather than days, to retrospectively alter trigger points, or to prevent a warning, probation extension, or dismissal. PCP2 succeeded because a temporary winter parking space near the entrance would have been a reasonable adjustment given the respondent controlled its own parking and occupational health said walking in inclement weather could aggravate symptoms.

The section 15 complaint about the warning failed because, although the warning was because of absences arising in consequence of disability, the tribunal held that issuing it was a proportionate means of managing sickness absence. The extension of probation also failed: the tribunal held it was an inevitable consequence of the warning and, in any event, proportionate. The complaint about refusal of time off for the claimant's husband's illness also failed; the tribunal found Danielle Payne misunderstood the leave position and that the refusal was not because of disability.

The recommendation not to confirm the claimant's appointment produced mixed findings. The complaint was dismissed insofar as it was directed at June Shaw, because the tribunal found that she was not the decision-maker on the recommendation form and would not allow the claimant to recast the case as an appeal complaint at that stage. The complaint succeeded against Danielle Payne: the tribunal found that her recommendation on 20/21 November 2018 was materially influenced by attendance concerns arising in part from disability and by conduct concerns linked in part to the claimant's disability-related challenge, and that the respondent had not shown the recommendation to be a proportionate response.

Victimisation succeeded against Danielle Payne for the same recommendation. The tribunal accepted that the claimant had made protected acts by raising reasonable-adjustment complaints on 6 September, 19 October and 2 November 2018, and inferred that those complaints were a material factor in the recommendation. The victimisation complaint failed against June Shaw for the same reason as the discrimination complaint. The harassment allegations were rejected because the conduct relied on did not meet the section 26 test. The dismissal by Andrew Bannon in May 2019 was also rejected as a section 15 claim: by then the claimant had 98 days' absence over five spells, including further stress-related absence, and the tribunal held dismissal was a proportionate response to sickness absence management. The section 109(4) reasonable-steps defence failed, and remedy was left to a hearing listed for 2 September 2021.