B Bongoso Lopo v ADT Fire & Security plc — 2022

The claimant was a black African from the Democratic Republic of Congo and was disabled by dyslexia. She worked for the respondent from 21 July 2014 and was managed by Mr Rafique from 24 April 2016. The tribunal found some of the alleged remarks were not proved, but accepted that in September 2018 Mr Rafique told the claimant he was not there to hold her hand when she was seeking other roles, and that on 19 February 2019 he spoke to her about the style of her emails in front of Ms Smith. The harassment complaints failed because the tribunal did not find the conduct was related to race or disability, and it did not accept that the required effect under s.26 EqA was made out.

The direct discrimination claims also failed. The tribunal did not accept that the claimant had been denied support with training and development in September 2018, and it accepted the respondent's evidence that it expected staff to take ownership of their progression. The 18-week delay in the grievance appeal outcome was found to have been caused by Ms Shaw's serious illness and would not have been shorter if another manager had taken over. The allegations about mediation, sick pay, the grievance investigation and the appeal were not found to be because of race or disability, and the tribunal found no valid comparator case had been established for the direct discrimination complaints.

The tribunal dismissed the discrimination arising from disability, indirect discrimination and reasonable adjustments complaints. It found no evidence that the alleged denial of support in September 2018 was unfavourable treatment arising from dyslexia. For the indirect discrimination and reasonable adjustments claims, the tribunal accepted the PCPs identified in the list of issues, but found that the claimant had not shown a substantial disadvantage in practice and that the respondent's aim of adequate performance was legitimate and, on the tribunal's findings, proportionate. The tribunal also recorded that the claimant did not raise complaints about the PCPs or targets during her employment.

The victimisation complaint succeeded in relation to the handling of the claimant's grievance and appeal. The tribunal found that the respondent pushed the claimant into mediation on 20 May 2019, suspended her sick pay when she would not engage, and then handled the grievance and appeal inadequately. Mr Roden did not properly probe the grievance or interview witnesses, and Ms Shaw treated the appeal as a back-to-work meeting rather than a proper appeal, while also relying on HR material about the claimant's named colleagues. The tribunal held that this approach was materially influenced by the claimant's protected acts and amounted to unlawful victimisation. The sick-pay suspension was found to be a detriment but not because of the protected acts.

The claimant resigned on 29 September 2019 in response to the grievance appeal outcome. Because the victimising grievance process was found to be a breach of the implied term of trust and confidence, the tribunal held that she was constructively dismissed. No fair reason for dismissal was advanced, so the unfair dismissal complaint was also well-founded. Remedy was not determined in this judgment and the case was left for a separate remedy hearing.