Mr E. Mismaque v Sunrise Brokers Ltd — 2020

The Claimant worked as a broker for Sunrise Brokers Ltd and, from January 2018, the tribunal found that his sleep, appetite, mood, timekeeping, motivation and interactions at work deteriorated because of anxiety and depression. It found that by March 2018 managers, including Ms Daly and Mr Fennessy, knew he was struggling with depression, and that the proposed sabbatical was linked to his mental health rather than being a mere holiday request.

The tribunal held that the Claimant was disabled within the meaning of the Equality Act 2010 from the beginning of October 2018, when the substantial adverse effects of anxiety and depression had lasted long enough to satisfy the long-term test. It also found that the Respondent had actual, or at least constructive, knowledge by that point. On the s.15 claim, the tribunal held that the Claimant's absence from work arose in consequence of his disability, and that the refusal to pay the Q2 super bonus of £70,649, the dismissal on 7 January 2019, and the failure to uphold the appeal were unfavourable treatment because of that absence. The instruction to return to work and the start of disciplinary action were found capable of justification, but the bonus withholding, dismissal and appeal rejection were not proportionate.

The direct disability discrimination claim failed because the tribunal found that the relevant treatment was driven by the Respondent's view that the Claimant was absent without leave and refusing the conditions attached to leave, rather than by disability itself. The failure to make reasonable adjustments claim also failed: the tribunal held that some suggested steps, including referral to occupational health and accepting medical evidence, were not themselves reasonable adjustments, while others, such as phased return, part-time work, remote working, or a mentor, were not shown to remove the disadvantage. The harassment claim failed because, although the conduct relied on was unwanted and humiliating, the tribunal found it was related to the leave dispute rather than closely enough related to disability.

The direct religious discrimination, indirect disability discrimination, and unlawful deduction from wages claims were withdrawn. The tribunal also held that acts before 6 January 2019 were out of time unless they formed part of conduct extending over a period, and it accepted jurisdiction for the bonus-withholding complaint on that basis. Unfair dismissal was upheld because the investigation and disciplinary process were found to be materially flawed, including undisclosed investigatory meetings, edited notes, off-the-record discussions, inappropriate HR involvement, and a decision that had effectively been predetermined. Remedy was not determined in this judgment; the tribunal directed a separate remedy hearing.