Mr H Bouheniche v The Commissioners for Her Majesty’s Revenue and Customs — 2019

The claimant remained employed by the respondent and brought claims arising from events after his return from a year of sickness absence. The respondent accepted that he was disabled by reason of cancer. The tribunal preferred the respondent's evidence where there were conflicts, finding the respondent's witnesses largely credible and the claimant's evidence often vague, inconsistent with documents, or not made out on the balance of probabilities.

The disability discrimination claims concerned refusal of flexible working. The tribunal found that flexible working was not offered to twilight workers at the relevant time because of accommodation pressures, that others on twilight shifts were also refused, and that the claimant was later offered flexible working when the policy changed and accommodation pressures eased. It found no less favourable treatment because of disability and no unfavourable treatment because of something arising from disability; alternatively, it found the refusal proportionate to legitimate aims.

The race discrimination claim concerned the claimant not being placed on the complaints team. The tribunal found that the claimant had not produced evidence beyond assertion from which race discrimination could be inferred. It accepted the respondent's explanation that complaints work was complex, that the claimant had been absent for a year, and that there were concerns about his experience and performance for that task.

The victimisation claim failed because several alleged detriments pre-dated the accepted protected act of 16 July 2018. For the remaining matters, the tribunal found the misconduct disciplinary process was not because of the protected act, the respondent was not reluctant to allow disability adjustment leave but required evidence under its procedures, and the grievance was not ignored. The harassment allegations also failed: the tribunal found there were reasonable management meetings rather than daily harassment, no compulsion to take IT training, no proven sarcastic response, and no unfair assessment of the claimant's work related to disability.

The holiday pay claim failed. The tribunal found the claimant accrued holiday during sickness absence, had been told of his accrued leave and the need to take it before 30 September 2018, and lost all but ten days under the policy when he did not take most of it. It also found he could not bring the matter as a breach of contract claim while still employed, and that there was no unlawful loss.