Mr Edwin Duah v Financial Ombudsman Service Limited — 2020

The claimant was employed as an adjudicator and had diagnosed mental impairments of OCD, anxiety and depression, which the respondent conceded amounted to disability. The tribunal found that after a period of absence and return to work, the claimant had continuing performance, conduct, timekeeping, case management, CVP and productivity issues, and that these difficulties pre-dated the period of management by Rob Croucher.

The tribunal accepted jurisdiction over the discrimination complaints on the basis of an ongoing situation or continuing state of affairs. On the section 15 Equality Act claim, it found that the use of disciplinary and capability proceedings, PIPs, monitoring of hours and breaks, fixed hours, the allegation about gossiping, and payment of SSP rather than occupational sick pay were not unfavourable treatment arising from disability. It also found that the respondent's management steps were a proportionate means of achieving a legitimate aim.

On reasonable adjustments, the tribunal considered the requirements to work 9am to 5pm, to email start, finish and break times, and the alleged delay in occupational health assessment. It found that the respondent could not reasonably have been expected to know that the fixed hours or email requirements would place the claimant at the asserted substantial disadvantage, that the hours were changed after the occupational health recommendation, and that there was no PCP of delaying occupational health assessment. It also recorded a number of supports and adjustments made for the claimant.

On constructive unfair dismissal, the tribunal found that the matters relied on did not amount to breach of an express or implied contractual term. It found the claimant had affirmed the contract after the period managed by Mr Croucher, had not appealed warnings or lodged a grievance, and resigned before the outcome hearing on 1 March 2019 rather than in response to any breach. The claims were dismissed.