Mr A v ‘C Ltd’ — 2020

The claimant worked for the respondent, an employment business supplying labour to KH, after an interview on 15 October 2018. He worked shifts through October and November 2018. In December 2018 and January 2019 he obtained fit notes for anxiety and sent text messages saying he was off sick and later that he felt better and was available for work. On 28 January 2019 Richard Burford texted that there would be no more shifts, and on 29 January 2019 he explained this by reference to regular workers at KH who could complete five shifts a week. The claimant later brought disability discrimination claims; the unfair dismissal claim was formally withdrawn.

On the direct discrimination claim under s.13, the tribunal found that the claimant's proposed comparators, D and J, were not in materially similar circumstances because neither had been off work sick for six consecutive weeks before 28 January 2019. The tribunal also considered a hypothetical comparator and concluded that a non-disabled worker in the claimant's position would have been treated the same way. It accepted that the respondent's explanation for the decision was not always consistent, but found that the real reason for not offering further shifts was the claimant's recent sickness absence at a time when work at KH was reducing, and not disability.

On the s.15 claim, the tribunal held that the claimant had been subjected to unfavourable treatment by not being offered further work, and that his sickness absence was something arising in consequence of disability. However, the respondent succeeded on s.15(2). The tribunal found that the claimant did not tell Dawn Thomas at interview, or Richard Burford at the start of his employment, about his mental health issues. It found that the later texts and fit notes showed anxiety, but did not give enough information to show that the condition had lasted or was likely to last 12 months, or that it had the required substantial effect on day-to-day activities. The tribunal therefore held that the respondent did not know, and could not reasonably have been expected to know, that the claimant had a disability.

The tribunal also considered whether the inaccurate reference given to H Limited could amount to further disability discrimination or victimisation, but rejected that possibility. It found no evidence that the reference was given because of a protected act, and said that any civil claim based on negligence would be a matter for another court. No monetary award was made.