Ms P Perry v Perrywood Garden Centre and Nurseries Limited — 2023

Ms P Perry worked for Perrywood Garden Centre and Nurseries Ltd as a Plant Area Assistant from 5 April 2018 until she resigned on 18 March 2023. The case was heard by Employment Judge Gardiner sitting alone after the parties consented to a judge-alone hearing. The tribunal found that, by the period covered by the main complaints, the claimant satisfied the definition of disability under section 6 of the Equality Act 2010 by reason of depression, anxiety and symptoms consistent with autism, ADHD and related difficulties, and that the respondent knew or ought reasonably to have known of that disability.

The tribunal accepted that the claimant found criticism and changes to work arrangements difficult, and that the working relationship with managers could be strained, but it rejected a number of specific factual allegations. In particular, it did not accept that Ms Baker Sinclair told the claimant the problems were 'all in your head', and it did not accept the claimant’s account of Ms Freeman being aggressive on the key dates relied on. The tribunal also found that the respondent had made repeated adjustments over time, including occupational health referrals, a move away from glove-related work because of eczema, neurodiversity training, a tailored adjustment agreement, coaching, mediation and later task-allocation arrangements.

The constructive unfair dismissal claim failed. Applying the implied term of trust and confidence and the authorities it cited, including Malik v BCCI, London Borough of Waltham Forest v Omilaju and Leaney v Loughborough University, the tribunal held that none of the alleged incidents amounted to a fundamental breach, and that the matters relied on did not do so cumulatively either. It found the respondent was entitled to manage the claimant, to issue justified criticism where appropriate, and to require work in the ornamental tree area when the needs of the business required it.

The direct disability discrimination complaint also failed. It concerned the respondent’s refusal to allow the claimant to withdraw her resignation in April 2023. The tribunal held that Thanapan Pennick was not a proper comparator because her resignation arose in materially different circumstances, and that there were no facts from which it could infer that the refusal was because of disability. It accepted the respondent’s explanation that the claimant remained unhappy at work despite the support already provided.

On discrimination arising from disability, the tribunal accepted that the September 2022 written warning arose at least in part from communication difficulties consequent on disability, but it held that issuing the warning was a proportionate means of achieving legitimate aims. Those aims were conduct management under the respondent’s disciplinary procedure and the protection of the health and safety of staff, including Ms Freeman. It rejected the alleged October 2022 comment as not having been made, and because it found there was no constructive dismissal, that limb of the s.15 claim also failed.