Mrs J Russell v Blackpool Council — 2024

Mrs Russell was found to be disabled by reason of fibromyalgia only. The tribunal rejected disability status based on facial deformity, finding that the surgical after-effects were not a severe disfigurement and did not amount to a substantial adverse effect, and it rejected anxiety/depression because the evidence did not show a long-term impairment by the material date. The case arose from the Client Finance team's home-working WhatsApp group during the covid-19 period, which the tribunal found was used for both work and social communication.

On harassment, the tribunal dismissed the disability-related allegations about the claimant being described as 'quiet' and about her face appearing on a video call, finding no sufficient link to fibromyalgia or facial deformity and no harassment. It upheld the separate harassment claim in part in relation to WhatsApp messages about service users and colleagues sent between 12 January 2021 and 17 March 2021. The tribunal found that a number of messages related to disability, race, age, sex and sexual content, and that the cumulative effect of the messages created an environment the claimant reasonably found hostile and offensive, even though many individual messages were treated as unprofessional but not, taken alone, serious enough.

The reasonable adjustments claim failed. Although the council operated a rota for office attendance and later knew that the claimant had fibromyalgia, the tribunal was not satisfied that the rota placed her at a substantial disadvantage compared with someone without her disability. It found that the difficulties she described were more closely connected to her wish not to work in person with colleagues than to the rota itself, and that she only made an express request to be removed from the rota on 21 May 2021, when the next occasion was then covered.

The protected disclosure claims succeeded in part. The tribunal held that PD1, PD2, PD4, PD6, PD7 and PD13 were protected disclosures, while PD8, PD9, PD10 and PD12 were not. It found that Claire Coggan's failure to invite the claimant to the replacement WhatsApp group was a detriment materially influenced by the disclosures. The initial failure to investigate the WhatsApp posts and the later failure to communicate clearly were also treated as detriments, but the tribunal did not find the required causal link to the protected disclosures for all of those complaints, and the complaints about permanent home-working and expediting the investigation failed.

The tribunal upheld constructive unfair dismissal. It found that the respondent's decision on 22 April 2021 not to proceed with a formal investigation, and the failure to invoke the whistleblowing process properly, breached the implied term of trust and confidence. The claimant did not affirm the contract and resigned in response to that breach on 4 June 2021. The automatic unfair dismissal claim under s.103A ERA 1996 was dismissed because the protected disclosures were not the sole or principal reason for dismissal, and the separate Equality Act theory that the dismissal itself was harassment and/or direct discrimination was also dismissed. Compensation was left to a later remedy hearing.