Miss C Lowell v Whitbread Group plc t/a Costa Coffee — 2019

Miss C Lowell brought claims of direct disability discrimination and disability harassment arising from an informal interview on 2 October 2018 with Carlean Loseby and Leigh Calladine for a Barista role at Costa’s Castle Marina store. The claimant said Ms Loseby commented that when they had worked together in 2013 the claimant had been on anti-depressants and had had a breakdown, and that it might happen again in a busy store approaching Christmas. The respondent denied that the comment was made and disputed that it knew or ought reasonably to have known that the claimant was disabled at the material time.

The tribunal accepted that the claimant met the definition of disability under section 6 of the Equality Act 2010, but found that Ms Loseby did not know and could not reasonably have known that she was disabled on 2 October 2018. It noted the claimant’s evidence about a crying episode in 2013 and about taking anti-depressants, but found that any such incident was remote in time, had not led to notable sickness absence, and was not something Ms Loseby was likely to recall five years later. The tribunal also accepted the evidence that the claimant’s sickness absence record was unremarkable and that Ms Loseby had in fact offered her the job.

On the facts, the tribunal found that the interview did involve a discussion about availability, but only in the sense of when the claimant could work, not any historic issue about a breakdown or sickness absence. It rejected the claimant’s account of the alleged comment and found that there was no less favourable treatment because of disability. For the same reason, it found there was no unwanted conduct related to disability, so the harassment claim also failed. The tribunal added that a discussion about availability with a prospective recruit in a busy period was not surprising and would have occurred with any materially similar candidate.

The tribunal therefore dismissed both claims. It made no monetary award, although it commented that the respondent should consider improving regular equal opportunities and mental health training for store managers.