Mr T W Brophy v Marks and Spencer plc — 2022

The claimant, a warehouse operative, relied on autism, type 1 diabetes, asthma, anxiety and depression. The case concerned his absence from work during the early Covid-19 pandemic and his concerns about the safety of returning to the respondent's distribution centre. The Tribunal found that the respondent had taken many steps to reduce Covid risk at the site, had communicated with the claimant about those measures, and had sought occupational health input and a personalised risk assessment.

On the section 15 Equality Act claim, the respondent admitted that issuing and re-issuing a 12-month written warning was unfavourable treatment. The Tribunal found that the claimant's absence, inability to return to work, and feeling unsafe with a generic risk assessment arose in consequence of disability, and that absence was an effective cause of the disciplinary action. The claim nevertheless failed because the Tribunal held that the written warnings were a proportionate means of achieving the legitimate aims of operating a disciplinary policy to regulate conduct and behaviour and preventing unauthorised absence.

On reasonable adjustments, the Tribunal found that some PCPs were applied, including the requirement to have good attendance, to work in a specific role, and to have been designated as needing to shield to qualify for furlough or paid leave. It found that only the shielding requirement PCP caused substantial disadvantage, but that placing the claimant on furlough without a shielding letter would not have been a reasonable adjustment. It also found that the relied-upon physical features and absence of auxiliary aids did not place the claimant at a substantial disadvantage in light of the measures taken by the respondent. The reasonable adjustments claim was dismissed.