Mrs S Walsh v Rose Medical Limited — 2020

The tribunal found that Mrs Walsh had osteoarthritis and that Mr Nolan knew this from the March 2017 interview and, in any event, from the 7 February 2018 medicines review. Applying section 15 Equality Act 2010 and the burden of proof authorities it cited, the tribunal held that Rose Medical Limited dismissed her because of sickness absence on 13 and 14 September 2018, which arose from a flare-up of osteoarthritis after the 11 September 2018 'dooping' task. Mr Molyneux made the dismissal decision in the 14 September telephone call after hearing that she was off sick, and the respondent did not establish a proportionate means of achieving a legitimate aim.

On the age-based claim, the tribunal held that Mrs Walsh made protected acts in February 2018 and again on 17 May 2018 when she complained about younger staff mocking her for hearing loss, forgetfulness and age. It found that after the May complaint Mr Nolan became abrupt and offhand, ignored her at times, applied greater scrutiny to alleged misfiling, reprimanded her over customer-service issues, was less helpful, and asked how old she was and when she would retire. Those detriments were found to be because she had complained, and the tribunal held the victimisation claim was in time on a continuing conduct basis under section 123 Equality Act 2010 and Hendricks.

The tribunal also found that the written contract dated 28 March 2017 did not comply with sections 1 and 4 Employment Rights Act 1996 because it failed to identify the respondent correctly and omitted payment intervals. It therefore upheld the section 38 Employment Act 2002 claim. Liability was determined in the claimant's favour on all three heads, and the case was listed for a separate remedy hearing; no quantified award was made in this judgment.