Mr Peter McGrath v Eddie Stobart Limited — 2023

The claimant, a HGV driver with COPD, was accepted to be disabled under section 6 of the Equality Act 2010. The dispute arose after the respondent ended furlough arrangements in late 2020 and told him to return to work or provide a fit note, against the background of changing shielding guidance, HSE-approved safety measures and repeated offers of meetings to discuss a return. The tribunal accepted the respondent had measures in place including sole-driver working, cleaning kits and Covid-secure arrangements, and preferred the contemporaneous emails and meeting notes over the claimant's account in a number of respects.

On the section 15 claim, the tribunal held that stopping pay from 2 December 2020 was not unfavourable treatment in the claimant's circumstances because he knew his absence was unauthorised if he did not return to work or supply a fit note. It also found that the claimant's non-attendance did not arise in consequence of his disability: the tribunal found he was physically well enough to work but chose not to do so because of his fear of Covid and his view that he should remain at home on furlough. In the alternative, the tribunal found the respondent's approach was a proportionate means of achieving legitimate aims, namely maintaining attendance and managing a safe return to work during the pandemic.

On reasonable adjustments, the tribunal found there was no PCP requiring employees to return from furlough without a risk assessment or discussion about safety. It found the respondent had repeatedly tried to meet the claimant, discuss health and safety and involve a Covid champion, and had already satisfied the HSE that the workplace was Covid secure. Even if such a PCP had existed, the tribunal found there was no reasonable step that would have avoided the alleged disadvantage because the claimant would not leave the house or return to work whatever measures were taken. On harassment, the tribunal found the communications about furlough ending, unpaid leave and returning to work were managerial communications aimed at getting the claimant back to work or obtaining a fit note, not unwanted conduct related to disability with the required purpose or effect. All disability discrimination claims were dismissed; no remedy was awarded because the hearing was on liability only.