Mr K Hopkins v Ministry of Defence — 2022

The claimant had PTSD, which the respondent knew about. The tribunal found that the respondent's requirement to attend work and perform usual duties placed him at a substantial comparative disadvantage, because his future employment was at risk. It found, however, that the respondent was not required to offer an alternative role, permit homeworking, or alter the formal absence management process in the ways alleged, because the claimant was not fit for work in any capacity during the relevant period and medical advice did not suggest those steps would allow a return to work before the claim was presented.

The tribunal rejected the factual basis of several section 15 complaints. It found that Lt Col Potter did not press the claimant for ill health retirement, did not threaten dismissal, and did not say he would end the claimant's employment regardless of occupational health or grievance outcomes. It also found the grievance investigation and decision were not predetermined. The full sick pay complaint was not pursued after a concession that non-payment of full sick pay was not unfavourable treatment.

On homeworking and alternative roles, the tribunal accepted that decisions were connected with matters arising from the claimant's disability, including absence, inability to perform his current role, previous absences, and concern about his health. It found the treatment justified as a proportionate means of achieving legitimate aims, including protecting the claimant's health and wellbeing and allocating MOD resources appropriately. The direct discrimination complaint about alternative roles also failed because the tribunal found that a comparator in materially similar circumstances would not have been treated more favourably.