Mrs L Falconer v The Commissioners of Her Majesty’s Revenue & Customs — 2019

Mrs L Falconer worked for HMRC from 2006 and the tribunal accepted that she had been disabled since 2008 by dilated cardiomyopathy. It also found that the chronic fatigue, stress and anxiety described in the evidence were caused by, and formed part of, that disability. The tribunal noted that she had previously performed well, but that matters worsened after HMRC introduced more flexible working arrangements and her work moved to workloads that required more rapid switching and more training.

On the reasonable adjustments complaint, the tribunal accepted the PCP identified by the claimant: that she attend work and carry out her day-to-day duties. It found that PCP placed her at a substantial disadvantage, both because of the effect of her disability on her ability to do the work and because she was at greater risk of attendance-management action. The tribunal upheld a number of failures, including not referring her to occupational health in a timely way, not moving her away from Scheme Reconciliation or out of the line management chain she said was causing problems, not limiting training to two hours a day despite OH advice, not awarding a flexi-credit, giving her inaccurate notes of the 8 November 2016 meeting, and offering her a return to work on the same workload that had caused difficulty. It rejected other alleged failures and found the external-mediator point out of time, although most of the adjustment complaints were treated as in time on a just and equitable basis.

Under section 15 of the Equality Act 2010, the tribunal found that HMRC treated her unfavourably because of something arising in consequence of her disability. The specific detriments it upheld were the flexi-deficit being treated as a problem to be repaid, the reference to flexi-abuse and potential gross misconduct, and the later deduction of the January 2017 overpayment from her final pay. It held that those matters arose from disability-related absence and fatigue, and HMRC did not show objective justification.

On dismissal, the tribunal found that the claimant had been driven to resign and that her resignation amounted to constructive dismissal under section 95(1)(c) ERA 1996. It held that HMRC had breached the implied term of trust and confidence through the course of conduct it found above, including the inaccurate meeting notes, the handling of her concerns about work, and the misinformation passed to Mr Hunt about ill-health retirement. The last straw was Mr Hunt telling her on 4 August 2017 that her managers had said ill-health retirement had been discussed, which the claimant said was untrue and which the tribunal accepted was the point that finally caused her to resign on 17 August 2017.

The tribunal therefore upheld the disability discrimination and unfair dismissal complaints in liability only and listed the case for a further one-day hearing on remedy. No compensation figures were determined in this judgment.