Miss Rachel Brook v Tyneside Cinema — 2019

The tribunal found that Miss Brook was a disabled person throughout her employment, with the respondent having actual or at least constructive knowledge of her mental health impairment from March 2017. That conclusion was based on Sharon Coull being told about fortnightly psychologist appointments, together with the workplace context, including the claimant’s emotional outbursts and need for colleagues’ assistance. The tribunal also found that the respondent had implemented the occupational health recommendations in substance, save for a risk assessment and ergonomic assessment, but there was insufficient evidence that those omissions were connected to the claimant’s mental health.

The respondent was restructuring for financial reasons and the claimant’s post formed part of a genuine redundancy exercise, but the tribunal found there was no imperative timetable requiring the redundancy consultation to start in June 2018. It accepted that putting the claimant through the consultation process was unfavourable treatment. The tribunal held that this treatment arose because the claimant’s mental health caused her to press repeatedly for answers after learning her post might be at risk, and that although redundancy was a legitimate aim, starting the consultation on 13 or 20 June 2018 was not a proportionate means of achieving it because a short delay was possible.

For the reasonable adjustments claim, the tribunal identified the PCP as the requirement that the consultation begin on 13 or 20 June 2018. It found that this put the claimant at a substantial disadvantage compared with non-disabled employees and that the respondent knew, or ought to have known, of that disadvantage because it had the occupational health report and risk assessment. The reasonable adjustment that should have been made was to delay the start of the consultation for a short period so the claimant could better cope with it.

The victimisation claim failed. The tribunal found that the local resolution request of 9 April 2018 was a protected act and was made in good faith, but it accepted that the redundancy decision had been driven by the restructuring process already underway and not by the protected act. It also found that there was no detriment from the appraisal, from the claimant’s absence from work in August 2018, or from the dismissal itself, because the dismissal was part of a genuine redundancy situation. No remedy was determined at the liability hearing. The tribunal applied Polkey and said there would likely have been a redundancy dismissal in any event, but it needed a remedy hearing to determine the length of any compensatory delay, loss of earnings and injury to feelings.