Miss J Jasinska v Bravo FB Limited (trading as Fox’s Biscuits) — 2023

The tribunal found that Miss Jasinska was an agency worker provided by Staffline from 27 July 2018 and that her employment with Bravo FB Limited, trading as Fox’s Biscuits, only began on 12 November 2018. It rejected the case that the agency period counted towards continuity, finding no implied contract with the respondent and no associated-employer continuity, so she had less than two years’ service when dismissed on 19 August 2020. The unfair dismissal complaint was therefore dismissed for want of jurisdiction, and the tribunal did not need to determine the merits of the capability dismissal, although it noted that the respondent had held meetings, obtained occupational health evidence, and considered alternatives.

On harassment related to disability, the tribunal accepted that Mr Patel said words to the effect of "maybe you should go off sick if you are unable to do your job" around 15 November 2019, but found the remark was not shown to be harassment in the statutory sense. In context it was treated as a managerial comment about the claimant's ability to work, and the tribunal was not satisfied that the purpose element was made out; it also found that it would not have been reasonable for the comment to have had the necessary hostile or humiliating effect. The tribunal further held that, even if the allegation had succeeded, it was out of time and it would not have been just and equitable to extend time.

The tribunal also accepted that Ms Burns said words to the effect of "Didn’t you really expect we were going to dismiss you?" at the 19 August 2020 meeting, after the claimant had been told her employment was ending. It found those words were an expression of surprise in the circumstances and were not related to disability. For direct disability discrimination, the tribunal found that Mr Hussain took away a chair or stool because he believed it was his, not because of the claimant's plantar fasciitis or depression, and it found that the dismissal itself was for capability, based on the claimant's restrictions, absence and the respondent's assessment of available roles, rather than because of disability.

On reasonable adjustments, the tribunal found that the respondent knew of the claimant's plantar fasciitis when she attended occupational health on 12 November 2019 and accepted that a requirement to stand for extended periods placed her at a substantial disadvantage. However, it found no breach on the evidence about the short period before her absence began, the uncertainty about exactly where she worked and what seating was available, and the respondent's rotation and health and safety arrangements. It also found that the respondent later engaged with occupational health, discussed seating and line adjustments, and committed to providing chairs where possible on return, but that the broader adjustments sought would not have been reasonable in the circumstances. All claims were dismissed and no remedy was awarded.