Claimant v Mrs E Evans and others T/a Foxleigh Family Surgery — 2019

Ms G Woods worked as a receptionist for the Foxleigh Family Surgery from 12 May 2017 until she resigned on 22 February 2019. The tribunal accepted that the respondents knew she was disabled with bipolar disorder from the start of employment. After incidents on 3 and 4 September 2018, Elaine Evans suspended her on 3 October 2018 and began disciplinary proceedings. The tribunal found that the suspension was not handled as a neutral step in context, because the claimant was expecting a return-to-work meeting, the respondents already knew there was a disability-related issue, and an early medical/capability approach would have been more appropriate.

The direct discrimination claim under section 13 failed because the tribunal was not satisfied that the claimant was treated less favourably because of disability, and held that a hypothetical comparator would also have faced disciplinary action. By contrast, the section 15 claim succeeded because the claimant’s behaviour on 3 and 4 September 2018 arose in consequence of her bipolar disorder, and the disciplinary route was not a proportionate means of achieving the respondents’ legitimate aim of protecting staff and patients. The tribunal also upheld the section 20-21 reasonable adjustments claim, identifying PCPs of suspension after alleged gross misconduct and use of the disciplinary procedure, and finding that paid leave pending medical advice, speedier handling, and adequate communication would have been reasonable adjustments.

The section 26 harassment claim succeeded on a number of the pleaded matters, including the suspension, the lack of communication during suspension, the invitation to disciplinary proceedings, delay in responding after the hearing, and the way the grievance was handled. The tribunal did not uphold every pleaded incident, including the allegation about release of the occupational health report and the allegation about requiring a return to work on insufficient notice. The section 19 indirect discrimination claim was withdrawn.

On constructive dismissal, the tribunal found breaches of the implied term of trust and confidence and held that the grievance hearing on 11 February 2019 was the last straw in a cumulative course of conduct. It found that Ms Evans did not properly address the grievance points or the appeal, that the grievance process breached the ACAS Code, and that Ms Woods resigned in response to the breach. Liability was determined only; the claims were adjourned to a remedy hearing and no monetary award was set in this judgment.