AB v Hodgson Automotive Limited — 2019

The Claimant worked as a Contact Centre Advisor from December 2017 until her dismissal on 24 May 2018. The tribunal accepted that she was disabled by interstitial cystitis, accepted her evidence about the symptoms and effects of that condition, and found that the Respondent's witnesses were not wholly reliable. It found that the Claimant was generally performing well and meeting targets, including shortly before dismissal.

The tribunal found that the Respondent's sickness reporting policy required telephone contact but was not strictly enforced in practice. The Claimant sent WhatsApp messages on 8 May and 18 May 2018 during disability-related flare-ups, and the tribunal accepted that her symptoms made a telephone call practically difficult. It found that Ms Beech did not properly listen to the Claimant at the 9 May return-to-work meeting, repeatedly warned her to be careful about trigger points in the sickness absence policy, and treated her absence and explanation with scepticism.

On that basis, the tribunal upheld the section 15 complaint in relation to the 9 May meeting and later upheld the section 15 complaint in relation to the 24 May meeting and dismissal. It found that Mr Latimer's conduct at the 24 May meeting was intimidating, that he did not accept the Claimant's explanation for not telephoning in, and that the dismissal was because of something arising in consequence of disability, namely the disability-related absences and the failure to report by telephone on two occasions. The tribunal rejected the Respondent's justification case, finding that the treatment was not a proportionate response to the aim of absence management.

The tribunal also upheld the reasonable adjustments complaint under sections 20-21. It found that the sickness absence reporting procedure placed the Claimant at a substantial disadvantage because, during a flare-up, she could not easily telephone her line manager after a sleepless night spent on the toilet. It concluded that the Respondent knew or ought to have known of that disadvantage, and that a reasonable adjustment would have been to permit messaging in on the first day of absence caused by an interstitial cystitis flare-up. The tribunal dismissed the separate complaints about being unaccompanied at the return-to-work meeting and having Ms Beech conduct that meeting, finding no substantial disadvantage on those points.

The tribunal upheld the harassment complaint under section 26 in relation to Mr Latimer's conduct at the 24 May meeting, including his comment that the Claimant was pulling the wool over his eyes. It found that the conduct was unwanted, related to disability, and created an intimidating environment. The breach of contract and unpaid holiday pay complaints were withdrawn and dismissed, and the tribunal recorded that the case would proceed to a remedy hearing on 11 October 2019.