Diane Lutkin v Mr Atif Dinsdale (On behalf of the Executive Committee of The Dorman Long United Athletics Club) — 2020

The claimant worked for the respondent club as a bar person on a zero-hours contract. The tribunal found that she had been diagnosed with depression in January 2010 and had remained on sertraline for many years. It accepted her evidence that the condition had persistent but fluctuating effects on concentration, memory, motivation, sleep, and everyday activities, and found that those effects were exacerbated by a serious sexual assault in 2016 and by her mother's death in May 2019.

On the disability discrimination claim under section 15 Equality Act 2010, the tribunal found that Mr Hedley and Mr Sewell knew the claimant suffered from depression, was on medication, had undergone counselling, and had experienced the sexual assault and later bereavement. It concluded that the respondent had constructive knowledge of the facts making her disabled by the date of dismissal and, in any event, by the appeal stage. The dismissal was found to be because of the claimant's absence from work, and that absence was treated as arising in consequence of her disability rather than being severable from the bereavement. The tribunal rejected justification: it was not satisfied that dismissal was a proportionate means of maintaining staffing levels, particularly because the claimant was due to return to work on 19 July 2019 and the respondent had not carried out any proper balancing exercise or sought medical input.

On unfair dismissal, the respondent conceded that the dismissal was procedurally unfair. The tribunal held that the reason for dismissal fell within capability under section 98(2)(a) ERA 1996, but found there had been no warning, no discussion with the claimant, no proper enquiry into her health or return date, and no right of appeal in the dismissal letter. It also found that the respondent's handling of fit notes and the dismissal process was unclear and that the claimant had been marked on the rota to work again on 19 July 2019. The tribunal rejected the respondent's Polkey case and concluded that, had it acted reasonably and followed a fair procedure, it would not have dismissed her.

The tribunal therefore upheld both the unfair dismissal and section 15 disability discrimination complaints and directed the matter to a later remedy hearing. It noted that remedy would need to address the length of any continued employment, compensation for unfair dismissal and discrimination, and injury to feelings. It also recorded, for remedy purposes, that the respondent had failed to provide written particulars of employment under section 1 ERA 1996.