John William Kennedy Boggs v Warrington and Halton Teaching Hospitals NHS Foundation Trust and 1 other — 2024

John William Kennedy Boggs was a Band 7 pharmacist who had been off work from April 2019 because of anxiety and depression, and later relied on autism as well. The tribunal recorded that the sex discrimination and direct and indirect disability discrimination complaints had been withdrawn at the start of the final hearing, leaving the unfair dismissal, wrongful dismissal, section 15 disability discrimination, reasonable adjustments and harassment issues to be decided in this judgment.

On the section 15 claim, the tribunal found that the Trust's use of the attendance management procedure was unfavourable treatment arising from disability-related absence. It held that progressing to a stage 3 hearing in March 2020, and later imposing a stage 2 warning in July 2021, should have been dealt with by discounting disability-related absence and that the Trust's approach was not proportionate to its aim of encouraging attendance. Other section 15 allegations failed, including the decision to investigate and discipline the claimant over the 25 June 2021 car park incident, the restrictions placed on his pharmacy practice, and the refusal of unpaid leave.

The reasonable adjustments complaint succeeded only in relation to the absence-management triggers. The tribunal found the Trust knew of the claimant's disability and should have adjusted the trigger thresholds by discounting disability-related absence. The other adjustment complaints, including those linked to the disciplinary process and the refusal of unpaid leave, were rejected or were out of time and no just and equitable extension was granted.

The dismissal claims failed. Applying Burchell and section 98(4) ERA 1996, the tribunal held that the dismissing officer genuinely believed the claimant had acted misconductfully in the car park, had reasonable grounds for that belief, and conducted a reasonable investigation. It concluded that summary dismissal fell within the band of reasonable responses. On the contractual test, the car park incident taken with the earlier final written warning and the suspended sentence was held to amount to a repudiatory breach, so the wrongful dismissal claim also failed. The appeal was held fair overall, despite criticism of the absence of notes and the way some grievance points were handled.

The harassment claim failed. The tribunal accepted that the claimant had been required to do porter duties and that his retraining was halted after the car park incident, but it held that the statutory test for harassment related to disability was not met and that the dismissal was not disability-related in the legal sense. No compensation was assessed in this judgment; the tribunal directed that remedy would be dealt with separately.