Mr R Cunningham v Financial Conduct Authority — 2019

The respondent accepted that the claimant was disabled by chronic kidney disease and right upper limb difficulties, and that it knew or could reasonably have been expected to know of those disabilities. The tribunal found that only the kidney disease was relevant to the issues before it. The respondent also accepted that the claimant suffered severe fatigue during the 2017/18 appraisal year and that this arose in consequence of his chronic kidney disease.

The tribunal found that the claimant's performance while at work was impaired by the symptoms of his kidney disease, including profound fatigue and poor concentration. It found that the appraisal score of 1 was unfavourable treatment and that the two matters leading to that score, poor board reports and refusal to manage Case G, were caused by symptoms of the kidney disease. The tribunal held that the respondent's legitimate aims were not pursued proportionately because it took no account of the effect of the claimant's fatigue and poor concentration on his performance.

The indirect discrimination and reasonable adjustment claims failed because the PCP pleaded concerned applying the appraisal process regardless of how much of the appraisal year had been missed. The tribunal found that the claimant did not receive the appraisal score because he had taken time off, but because he was ill during the period when the assessed work was undertaken and that illness affected his performance. The tribunal therefore held that the pleaded PCP did not place persons with chronic kidney disease, or the claimant, at the alleged disadvantage.