Case 3201647/2019 · Employment Tribunal
Mr D Sweeney v Frederick J French (Contracts) Limited — 2020
- Case reference
- 3201647/2019
- Decision date
- 17 March 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Hallen Members
- Venue
- East London Hearing Centre
- Panel members
- Ms M Long, Ms J Owen
Parties
2 namedClaimant
Mr D Sweeney
Respondent
Key findings
Tribunal's reasoningThe tribunal found that Mr Sweeney was engaged personally to carry out the Site Manager role, was expected to work fixed hours on site, reported to Mr Davy, and was not free to send a substitute or come and go as he pleased. On that basis it held that his arrangement fell within section 83(2) of the Equality Act 2010 and that he was also a worker for the purposes of the Working Time Regulations 1998.
The respondent accepted on 13 February 2020 that Mr Sweeney was disabled, with Occipital Neuralgia and Idiopathic Facial pain. The tribunal accepted that he had a long-term nerve pain condition that could leave him bedridden and unable to communicate, and that he had disability-related sickness absences before the dismissal. It found that after his severe absence on 11 and 12 April 2019, Mr Davy and Ms Page decided to terminate his engagement on 15 April 2019, with written termination letters following on 16 April 2019.
The direct discrimination claim failed because the tribunal found that a hypothetical non-disabled comparator with the same level of sickness absence would have been dismissed in the same circumstances. The section 15 claim succeeded because the dismissal was unfavourable treatment because of absence arising in consequence of disability, and the respondent did not prove its stated legitimate aims or show proportionality. The tribunal rejected the respondent's later references to misconduct, damage and theft as reasons for dismissal, finding those matters were not raised at the time of dismissal or in the appeal outcome.
The indirect discrimination and reasonable adjustments claims failed because the tribunal did not accept that the alleged disciplinary and sickness-management policies were established PCPs with the required repetition, or that they put disabled people at a particular disadvantage compared with non-disabled people. It also found that the respondent did not in fact have some of the policies alleged, and that the claimant's evidence did not show the substantial disadvantage required for the reasonable adjustments duty.
The holiday pay claim succeeded and the tribunal held that Mr Sweeney was entitled to 8 days' holiday pay, but the monetary amount was left to a remedies hearing listed for 8 June 2020. The notice pay claim failed because he had agreed in writing to one week's pay in lieu of notice. The tribunal refused an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 because the respondent genuinely believed he was self-employed, and it recorded that on the evidence there was only a 30% chance he would have remained working until November 2019 based on his earlier sickness record.
Claims and outcomes
6 findings recordedThis case has mixed outcomes under at least one legal claim type. A tribunal can uphold some allegations and dismiss others under the same legal head, so rows below may represent separate issues or allegation groups from the judgment.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Direct disability discrimination under section 13 failed; the tribunal found a hypothetical non-disabled comparator with six days' sickness absence would have been treated the same. | Dismissed | Disability | — |
| Disability discrimination | Discrimination arising from disability under section 15 succeeded; the tribunal found the dismissal was because of disability-related absence on 11 and 12 April 2019 and the respondent did not establish justification. | Upheld | Disability | — |
| Disability discrimination | Indirect disability discrimination under section 19 failed; the tribunal held the alleged PCPs were not shown to be repeated practices and did not put disabled people at a particular disadvantage compared with non-disabled people. | Dismissed | Disability | — |
| Disability discrimination | The reasonable adjustments claim under sections 20 and 21 failed for the same reasons as the indirect discrimination claim; the tribunal did not find the alleged PCPs or substantial disadvantage made out. | Dismissed | Disability | — |
| Holiday pay | The tribunal held the claimant was a worker under regulation 2 of the Working Time Regulations 1998 and entitled to 8 days' holiday pay; the amount was left for the remedies hearing. |
Legal tests applied
9 references- section 83(2) EA 2010 personal service test
- Allonby / Jivraj worker test
- Igen / Madarassy burden of proof
- Pnaiser section 15 causation test
- Hardys and Hansens proportionality test
- Nottingham City Transport repetition test
- Royal Bank of Scotland v Ashton substantial disadvantage test
- section 207A TULRA 1992 ACAS uplift test
- Polkey-type reduction
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
How we got this data
Case essentials (reference, date, judge, venue, country, claim categories) are extracted from the structured metadata gov.uk publishes alongside each decision. Parties and monetary figures are extracted from the judgment PDF text. Key findings and per-claim outcomes require a second extraction pass that is not yet complete for this case — until then, the primary source linked above is the authoritative record. See full methodology.
Named in this case and want it removed? Submit a takedown request. The page will be withdrawn on receipt and the editor will follow up within five working days.