Miss C Lewis v Joy2Care Ltd FINAL HEARING — 2023

Miss C Lewis worked as a carer from 1 February 2020 until her dismissal on 21 June 2021. The tribunal accepted that she was disabled by asthma; her type 2 diabetes was not relevant to the issues. It found that the GP letter of 31 March 2020 described her as at higher risk because of asthma, and that the respondent furloughed her from 4 April 2020 to 31 July 2020 after saying it would treat that letter as certification for a 12-week isolation period.

When shielding guidance changed, the respondent asked about a return to work and later stopped furlough, saying it had been advised the Job Retention Scheme could not be used because work remained available. The tribunal found the claimant was off sick from August 2020 because of bereavement, as shown by successive fit notes, and that she did not tell the respondent until 7 October 2020 that she was in the extremely clinically vulnerable category. It also found that much of the correspondence said to be from her had in fact been drafted by her partner, Mr Ennis, and gave limited weight to her evidence on disputed matters.

Applying the statutory tests under s.44(1)(d) and s.100(1)(d) ERA 1996, s.15 and ss.20-21 EQA 2010, s.26 EQA 2010, and the burden-of-proof approach in Ayodele, the tribunal rejected the detriment, dismissal, discrimination and harassment complaints. It found that the claimant had not refused to return to work within s.44, that the respondent's requests for fit notes, shielding letters, welfare meetings, capability meetings and an individual risk assessment were reasonable responses to her continuing absence, and that the challenged treatment was not because of her disability or something arising in consequence of it.

On dismissal, the tribunal found the reason was an irreconcilable breakdown in the employment relationship, not the claimant's refusal to return to work or any need to shield. It relied on the claimant's refusal to engage constructively, the hostile tone of the correspondence sent in her name, and the fact that by March 2021 she was seeking a 34,000 pound exit package rather than a return to work. The reasonable adjustments claim failed because the employer had already allowed her not to work and keeping her on furlough indefinitely was not a reasonable adjustment; parts of that claim were also said to be out of time. The complaint about employment particulars was dismissed because there was no evidence that the required particulars had not been provided. No monetary award was made.