Ms D White v OneTek Business Solutions Limited and 1 other — 2021

Ms White was employed as a Business Development Manager from 23 April 2018 and was dismissed on 11 December 2018 during an extended probationary period. The tribunal accepted that she had progressive kidney disease amounting to disability under section 6 Equality Act 2010. It also accepted that the respondent had in mind several disability-linked matters, including concerns about driving, hospital appointments, possible future absence, and the cost of a medical report, but found that the central reason for dismissal was poor sales performance, a lack of sales planning, and failure to complete probation, in the context of serious financial pressure on the business.

The section 15 disability discrimination claim failed. The tribunal held that the respondent's legitimate aim was the survival of the business and that dismissal was a proportionate means of achieving that aim. In reaching that view it referred to Charlesworth v Dransfield Engineering Services Ltd, Basildon Thurrock NHS Foundation Trust v Weerasinghe, and City of York Council v Grosset as part of its causation and justification analysis.

The victimisation claim under section 27 Equality Act 2010 also failed. The tribunal accepted that the claimant's appeal letter of 9 January 2019 was a protected act and that the respondent's reply threatening legal action caused upset, but it found that the reply was not caused by the protected act. The tribunal found the response was driven instead by the claimant's previous threat of legal action, Facebook posts, and Mr Donaghey's concerns about the business and his personal financial position.

The notice pay claim was dismissed because the tribunal did not accept that there had been any oral agreement at the dismissal meeting to extend pay to 31 December 2018. It found that the written contract provided for one week's notice during probation and that no further notice payment was due. The section 38 Employment Act 2002 claim about written particulars and commission information also failed, the tribunal holding that there was no breach on the facts. The only monetary award was by consent: judgment for £230 in respect of unpaid expenses.