Mr R Cole v Reuters Ltd — 2019

The claimant, a long-serving Reuters/Breaking Views assistant editor with a history of depression and anxiety, brought two disability-related tribunal claims. The tribunal extended time for both claims on a just and equitable basis because his mental ill-health, including periods of hospitalisation and suicidal thoughts, meant he could not deal with the litigation earlier. The first claim focused on performance management and appraisal issues in late 2015 and January 2016; the second focused on later emails, the Long-Term Sickness scheme process, and the grievance about the occupational health report.

On the first claim, the tribunal found that Mr Foley and Mr Cox were monitoring the claimant's performance rather than running a capability process. The evidence showed a series of specific criticisms about late or under-analysed articles, but also positive appraisal comments, a 2015 achieved rating, and a bonus. Mr Foley sought HR advice, introduced training and EIKON access, and encouraged the team to work differently, but the tribunal held that the claimant was not placed at a substantial disadvantage and that no reasonable adjustment duty arose.

The tribunal rejected the direct discrimination and discrimination arising from disability complaints. It found that comments such as the claimant lacking baseline financial skills or being unwilling to learn were made in the context of specific work criticisms, not because of disability. It also found no evidence of a pre-determined plan to remove him, no less favourable treatment on disability grounds, and no unlawful failure to complete the appraisal form while he was on sick leave. The indirect discrimination complaint also failed because the tribunal found no discriminatory PCP and, in any event, considered the respondent's approach proportionate.

The harassment and victimisation complaints also failed. The tribunal accepted that emails about the claimant's skiing holiday, possible severance, Facebook Brexit commentaries, and Edinburgh Fringe activity were upsetting when later disclosed, but held that they were private management queries about sickness absence and possible settlement, not accusations that he was malingering or a plan to dismiss him. The tribunal found that those communications did not damage his reputation or create a hostile environment, and it rejected the argument that the grievance outcomes were influenced by the protected acts of the first grievance or the first tribunal claim.

On the LTS scheme and the Dr Isaacs report, the tribunal accepted that the respondent applied a regular-attendance PCP after January 2016 and that the claimant was at a disadvantage because his disability increased the likelihood of absence. Even so, it found that the respondent was not actually pursuing a capability process, had already used HR support and a communication buffer through the claimant's solicitor and wife, and had arranged occupational health reviews as his absence continued. The tribunal accepted that the respondent's correspondence with Dr Isaacs was unhelpful and at times rude to the doctor, but held that it was directed at obtaining a clear medical report for the scheme rather than victimising the claimant. The second grievance and appeal were not upheld, and all complaints were dismissed.