Ms Paula Lewis v The Disablement Association of Barking and Dagenham — 2023

Ms Paula Lewis worked for The Disablement Association of Barking and Dagenham as a support worker on a zero-hours contract from 31 August 2019 until she resigned on 8 March 2022. After furlough ended in August 2021, she told the respondent that she had injured her knee and could not walk long distances or stand for long periods, and later produced a fit note stating osteoarthritis of the knee and that she may be fit with amended duties. The tribunal found that the respondent had knowledge of disability from 27 August 2021.

The constructive unfair dismissal claim failed. The tribunal accepted that there were shortcomings in the handling of the claimant's return to work, including no occupational health referral, no training link, lack of concern about mental health, and failure to make reasonable adjustments. It held that the relevant matters amounted to a fundamental breach of the implied term of trust and confidence, but the claim still failed because the claimant had already decided by at least 1 November 2021 that she would not return to work and resigned later when a negotiated settlement did not materialise, not in response to the breach.

The disability discrimination claims succeeded. On direct discrimination under section 13, the claimant was treated less favourably than her non-disabled comparator, Ms Eden Abraham, who received the training link and returned to work; the tribunal found the reason for the treatment was disability. On section 15 discrimination arising from disability, the unfavourable treatment was not offering work or training after furlough, and the tribunal found this was because of the claimant's inability to walk long distances, which arose from her disability; the respondent's legitimate aim of requiring employees to be physically able to perform duties was held not to justify the treatment.

The reasonable adjustments claim succeeded only in part. The tribunal found that a PCP requiring the claimant to walk long distances was applied in August 2021, put her at a substantial disadvantage, and should have been adjusted by allowing taxi travel or seated outdoor activities. It rejected the alleged PCPs requiring long periods of standing and office-based training because it found those PCPs were not applied. No monetary remedy was determined in this liability judgment.