Miss J Levell v Demicon Limited — 2023

Miss Levell started work for Demicon Limited in October 2019. The tribunal accepted that she had asthma and, applying the disability definition in s.6 Equality Act 2010, found that without medication the condition would substantially and long-term affect normal day-to-day activities. It found she told the respondent on 17 and 18 March 2020 that she was vulnerable to Covid-19, asked to work from home, and raised concerns about office and site safety. The respondent allowed remote working from 18 March 2020, but later required her to work on short time from 26 March 2020, reducing her hours to eight per week.

The tribunal found that the short-time working decision was a reaction to the claimant's request to work from home, her cautious response to the pandemic, and her refusal to attend site visits, rather than the shortage explanations advanced by the respondent. On that basis it upheld the s.44 ERA 1996 detriment claim and the s.15 EqA 2010 claim for discrimination arising from disability. It rejected direct disability discrimination because a hypothetical non-disabled comparator taking the same cautious approach would have been treated the same, and it rejected the reasonable adjustments claim because it found no PCP requiring the operations manager to attend the office or site once working from home had been allowed.

The tribunal also found that the cumulative effect of the reduction in hours and pay, pressure to attend the office/site, the warning over timesheets, and rejection of the grievance breached the implied term of trust and confidence and amounted to constructive dismissal. However, the automatic unfair dismissal case under s.100 ERA 1996 failed because the tribunal did not find that the health and safety concerns were the principal reason for dismissal, and the wrongful dismissal/notice pay claim failed because the claimant had a one-month notice period and was found to have worked it.

The victimisation claim failed. The tribunal accepted that the grievance was a protected act, but found the warning was given because the claimant continued to submit timesheets and that the grievance outcome email was not deliberately sent late to cause detriment. It upheld the unlawful deduction from wages claim and the pension-related breach of contract claim, but left quantification to a later remedy hearing. The tribunal also recorded an ACAS Code failure because the appeal outcome was not communicated, and said a 10% uplift would apply to relevant compensation at the remedy stage.