Miss N Thompson v The Pheasant Inn (Bassenthwaite Lake) Limited — 2019

Miss N Thompson was employed by The Pheasant Inn (Bassenthwaite Lake) Limited as a General Assistant in March 2018. The tribunal accepted that she was a disabled person by reference to bipolar condition, and found that she had told Mrs Wilson and Mr Wylie about her condition and about the effect that reduced or disrupted sleep had on her health. The tribunal preferred the claimant's evidence over that of the respondent's witnesses, whom it found to be inconsistent on key points about the rota discussions and the later dismissal.

The first rota included back-to-back shifts and the claimant raised concerns about the impact on her sleep. The tribunal found that the respondent then altered her rota for the week commencing 2 April 2018 so that the back-to-back shifts were removed, and that the claimant was satisfied with that adjustment. It rejected the respondent's account that the real reason for dismissal was an alleged incident on 25 March 2018 involving customers in the Bistro. The tribunal found that the incident occurred as the claimant described, not as the respondent later alleged, and that it did not form the true reason for dismissal.

On the section 15 Equality Act 2010 claim, the tribunal held that dismissal was unfavourable treatment because of something arising in consequence of the claimant's disability, namely the impact of the shift pattern and the claimant's related concerns about sleep and health. It applied the statutory wording and referred to Pnaiser v NHS England and another and York Council v Grosset when addressing causation and knowledge. The tribunal rejected the respondent's justification case and found that the dismissal was not a proportionate means of achieving a legitimate aim.

The reasonable adjustments, victimisation, and indirect disability discrimination claims were dismissed. The tribunal accepted the PCPs relied on by the claimant, but held that the disadvantage was avoided when the rota was changed within a reasonable time. It did not accept that the request for adjusted hours was itself a protected act for section 27 purposes, and it held that the same factual analysis defeated the indirect discrimination claim.

The automatic unfair dismissal claim under section 104 Employment Rights Act 1996 succeeded. The tribunal found that the claimant had asserted a relevant statutory right under the Working Time Regulations 1998, namely the right to an 11-hour daily rest break, and that this assertion was made in good faith. It concluded that the principal reason for dismissal was the assertion of that right, not the alleged misconduct relied on by the respondent. The breach of contract and unauthorised deduction claim over tips was dismissed because the tribunal found no contractual entitlement to tips. Liability was decided only in this judgment, and the case was listed for a remedy hearing on 15 November 2019, so no award was determined at this stage.