Christopher Port v Wilmington Healthcare Ltd — 2022

Mr Port worked for Wilmington Healthcare Ltd from 18 September 2017 and came under Jenni Winman's management in January 2019. The tribunal found genuine concerns about his performance, including the quality and pace of his work and his response in meetings. After the 25 April 2019 performance meeting he filed a grievance on 5 May 2019, went off sick on 7 May 2019, and never returned. The tribunal rejected his case that he had been set up to fail or that there was a hidden plan to remove him, and it held that dismissal on capability grounds by letter dated 20 January 2020, effective 24 February 2020, was fair after over six months' absence and no realistic prospect of return.

The tribunal held that the sex discrimination and sex harassment complaints were out of time. It found that the historical allegations about sexualised comments and the 'weasel' remark were not brought within the three-month time limit, that Mr Port had consciously chosen not to raise them earlier, and that it was not just and equitable to extend time. Those claims were dismissed on jurisdictional grounds and the tribunal did not need to make findings on the merits of the underlying allegations.

On disability, the tribunal accepted that Mr Port was disabled by anxiety and depression, but found that the respondent did not know and could not reasonably have been expected to know of that disability before, and perhaps not until well into, the sickness absence. It relied on the fact that he had not disclosed mental health problems before May 2019 and had shown no relevant symptoms at work. The tribunal therefore dismissed the claims of discrimination arising from disability, indirect discrimination, failure to make reasonable adjustments and disability-related harassment. It also dismissed victimisation because the 5 May 2019 grievance was about performance management and the PIP process, and did not found the protected act case advanced at the hearing. The tribunal noted that Mr Port had received 22 days of discretionary sick pay, double the usual 11 days, and that the HR correspondence and attempted support measures were not unfair.