Ms S. Bartlett v Heheals Pharmaceutical Ltd t/a Christ Church Care Agency — 2022

The tribunal found that Ms S. Bartlett was, despite being described as a zero-hours worker, in reality a full-time employee who had worked regular hours for the respondent for more than five years. It accepted that the respondent knew throughout her employment that she suffered from asthma, and on the evidence it found that the condition was severe asthma with long-term effects on day-to-day activities and the benefit of ongoing medication. The tribunal held that she was disabled within section 6 Equality Act 2010 and that the respondent at least had constructive knowledge of disability, or had not done enough to find out whether she was disabled.

On 2 December 2020, after the claimant said she could return to service users' homes only if she could wear a face visor rather than a surgical mask, Ms Michelle Kirk told her that she could not return to work and that her employment was being terminated with immediate effect. The tribunal rejected the respondent's case that the dismissal was by mutual agreement. It found that the reason for dismissal was capability, not some other substantial reason, because the claimant could not wear a surgical face mask for more than ten minutes due to her asthma. It also found that the dismissal was unfair because the respondent followed no fair process, carried out no meaningful investigation, did not discuss alternatives properly, and did not offer an appeal.

The tribunal also upheld the wrongful dismissal claim. It found that, given the claimant's more than five years' service, she was entitled to five weeks' statutory notice under section 86(1)(b) ERA 1996, that she was not dismissed for gross misconduct, and that she received neither notice nor pay in lieu of notice. It further held that the claimant was subjected to unfavourable treatment arising in consequence of disability when she was told she would receive no further work and was dismissed, and that the respondent had not shown that immediate dismissal was a proportionate means of achieving its stated aims of protecting service users and staff and complying with guidance.

The separate reasonable adjustments claim also succeeded. The tribunal found that the requirement to wear a blue surgical mask while on duty was a provision, criterion or practice, that it placed the claimant at a substantial disadvantage because of her inability to wear a mask for more than ten minutes, and that the respondent did not take reasonable steps to avoid that disadvantage. It specifically referred to possible alternatives including use of a visor or full-face shield, variation of duties, assistance with duties, and furlough. No remedy was assessed in this judgment, and the matter was listed for a separate remedy hearing.