Mr Patrick Ngugi v Commissioners for HM Revenue & Customs — 2022

The claimant, a Black African employee who was accepted to be disabled by reason of dyslexia and PTSD throughout the relevant period and depression from June 2018, worked as a tax investigator until dismissal on capability grounds due to unsatisfactory attendance. He brought complaints of unfair dismissal, direct race discrimination, race-related harassment, and discrimination arising from disability.

On the race complaints, the tribunal found that the claimant had not proved facts from which it could infer a discriminatory reason for the treatment alleged. It rejected or found unsubstantiated allegations about exclusion, scrutiny of work, criticism, training, comments by colleagues and managers, and other workplace incidents. Where incidents had occurred, including a colleague using offensive language, the tribunal found they were not related to race.

On disability discrimination, the tribunal considered allegations concerning warnings for data security breaches, performance feedback, a performance improvement plan, implementation of occupational health recommendations, and dismissal. It found either that the alleged treatment was not unfavourable, that the claimant had not shown the treatment was because of something arising in consequence of disability, or that the treatment was a proportionate means of achieving a legitimate aim. For dismissal, the tribunal accepted that absence arose from disability and that dismissal was unfavourable treatment, but found it proportionate given the length of absence, lack of return date, and impact on the team.

For unfair dismissal, the tribunal found the respondent relied on capability due to long-term absence. The claimant had been absent for almost six months, could not indicate when he might return, and did not identify treatment or a role change that would enable a foreseeable return. The tribunal found the respondent had consulted with him, considered the medical position and alternatives, and acted reasonably in dismissing him.