Mrs MG Harkins v Marks and Spencer plc — 2023

The claimant was employed as a Visual Merchandising Team Manager and had anxiety and depression, which the respondent accepted amounted to disability from March 2021. The tribunal found the respondent was aware, or ought to have been aware, of depression from an occupational health report in February 2020, but it did not accept that the respondent knew of a substantial disadvantage from working on the shop floor.

The disability discrimination, reasonable adjustments, harassment and victimisation complaints were dismissed. The tribunal found that the end-of-year review rating of "missed" reflected genuine concerns about leadership and performance, was not a "poor" rating, and was not related to the claimant's anxiety disorder. It found no evidence that the claimant's mental health was discussed outside normal or acceptable parameters, that the social media post was done in the course of employment, or that the relevant meetings amounted to harassment or unfavourable treatment. It also found that the proposed adjustments were not reasonable or were not shown to address a substantial disadvantage.

The tribunal accepted that the claimant's dismissal was because of disability-related absence, but found it was a proportionate means of achieving a legitimate aim. For unfair dismissal, it found capability was a potentially fair reason, the respondent had done all it reasonably could to facilitate a return to work, there was no foreseeable return date or reasonable adjustment identified, and dismissal fell within the band or range of reasonable responses.