Mr M Frazer v Highways England Company Limited — 2023

The claimant, Mr M Frazer, brought whistleblowing and disability discrimination claims against Highways England Company Limited arising from his protected disclosures in 2017 about the purpose and safety role of technology assets, and from later management of his role and long-term sickness absence. The tribunal accepted that he was a disabled person by reason of anxiety from 8 May 2018 and by reason of functional neurological disorder from 1 April 2019, although it found the respondent did not have knowledge of FND until late 2020. It also found the respondent had constructive knowledge of anxiety by 6 September 2018 and actual knowledge by the first occupational health report on 26 September 2018.

On whistleblowing, the tribunal found that some of the acts complained of amounted to detriments in the ordinary sense, including postponements of meetings, the way the October 2017 ILG presentation was brought to an end, criticism at the February 2018 finance meeting, changes to the claimant's role and budget, and continued involvement in the absence process. It held, however, that those actions were driven by management style, workload, finance and governance concerns, and the respondent's view of the CDO Division's priorities, rather than by the protected disclosures. The s.47B ERA claim therefore failed.

On harassment, the tribunal accepted that Mr Crowley-Sweet's continued involvement in the sickness absence process and the emails of 25 July and 2 August 2018 were unwanted and caused the claimant distress. It nevertheless found that, judged objectively, it was not reasonable for that conduct to have the statutory harassing effect, and that the conduct was not disability-related in the sense required by the Equality Act 2010. The harassment claim was dismissed.

The reasonable adjustments claim succeeded only in part. The tribunal found that the respondent applied a PCP requiring the claimant's absence management to be led by his line manager, and that continuing with Mr Crowley-Sweet caused a substantial disadvantage because he was one of the causes of the claimant's anxiety. It held that replacing him with HR or another manager would have been a reasonable adjustment, so that limb succeeded from 8 November 2018. The tribunal also found that the respondent's policy of not privately funding treatment but using its occupational health provider put the claimant at a substantial disadvantage; funding the claimant's existing counselling was reasonable from 28 March 2019, although funding a private assessment was not. The wider change-of-role and redeployment arguments failed, including the request to bypass the respondent's normal matching and interview process.

The indirect discrimination claim under s.19 EqA failed because the tribunal was not satisfied that the sickness absence policy created a particular disadvantage to disabled people as a group, and it said that in any event the policy would have been justified by the legitimate aim of managing attendance and redeployment so the organisation could deliver its public functions. The s.15 claim also failed: although the claimant's inability to attend work was accepted as the relevant something arising from disability, the tribunal did not accept that the impugned treatment was because of that something in the required sense, and it would in any event have been justified. The victimisation and unlawful deduction claims were withdrawn. No monetary award was made in this judgment; the tribunal directed that the case be listed for a remedy hearing.