Mrs A Roche v Tameside & Glossop CCG — 2019

The claimant worked as an Individualised Commissioning Administrator. The tribunal found that ulcerative colitis had been diagnosed in 2015 and that she was also off work with anxiety and stress. Her role involved weekly Continuing Healthcare panel meetings, and she had difficulties with fixed office hours, taking panel papers home, and reading distressing case material. After a flare-up in August 2017 and a brief return to work, she went on sick leave on 16 August 2017 and remained absent until dismissal.

The harassment claim failed. The August 2017 files incident was out of time and, in any event, was routine work prioritisation rather than conduct related to disability. The discussion in December 2017 about counselling was unwanted but, in the tribunal's view, was not reasonable to regard as creating the proscribed environment. The weekly telephone contact and the correspondence about flexible working and flexitime also did not amount to harassment.

The direct discrimination claim failed. The tribunal found no evidence that the grievance handling, the request for flexible working, or the other complained of treatment was less favourable treatment because of disability. The indirect discrimination claim also failed: the requirement for fixed hours was a PCP, but it was justified by the need to staff the telephones, and the other alleged PCPs either were not established, did not place disabled employees at a group disadvantage, or were justified because the CHC meetings had to discuss patients' health conditions.

On reasonable adjustments, the tribunal held that the respondent knew or ought reasonably to have known of the claimant's ulcerative colitis from the October 2017 occupational health report, but did not have constructive knowledge that anxiety was itself a disability. The tribunal upheld the complaint only in relation to allowing flexible start and finish times without prior notice where the effects of ulcerative colitis made that necessary. It rejected the remaining adjustment complaints, including the other CHC-related adjustments and the outdated policy point, and held that the duty continued until dismissal so the successful complaint was in time.

The dismissal-related complaints also had mixed outcomes. The harassment allegation based on the reference to possible dismissal failed. The section 15 claim succeeded because dismissal for sickness absence arising in consequence of ulcerative colitis was unfavourable treatment and the respondent had not shown justification; the tribunal said a structured neutral meeting and stress risk assessment, with the agreed flexibility adjustment, were less discriminatory alternatives. The unfair dismissal claim likewise succeeded because the respondent had not investigated or managed the position to a reasonable extent before dismissing. No remedy was quantified at this stage; the tribunal said any later award would be reduced by 10% because the claimant did not appeal, and it made no ACAS uplift or contributory fault reduction.