Miss Z Lu v KPMG Holding LLP — 2020

The claimant, Miss Z Lu, was employed by KPMG UK Ltd from 5 October 2015 and was dismissed with effect from 14 November 2018. The tribunal dismissed her unfair dismissal claim. It found that the reason for dismissal was conduct, that the respondent had a genuine and reasonably held belief in the misconduct relied on, and that the investigation and disciplinary process were fair and reasonable in the circumstances. It also found that the respondent had genuinely and reasonably concluded that trust and confidence had broken down, which would have supported dismissal for some other substantial reason. The tribunal held that dismissal for gross misconduct was within the range of reasonable responses.

The respondent conceded that the claimant was disabled by a medically recognised depressive condition and that it had knowledge of that disability. The section 15 Equality Act 2010 claim was dismissed. The tribunal found that some alleged unfavourable treatment was not factually made out, including the allegation that the claimant did not receive a 2017 bonus or progression. For the police contact, office access restrictions, and managers following the claimant to speak to her, the tribunal found that the respondent acted because of concern for the claimant's welfare, fitness to be at work, and the safety of others, and that the actions were proportionate means of achieving legitimate aims.

The reasonable adjustments claims were dismissed. The tribunal accepted that there was a general hot-desking requirement but found that, once occupational health advice was received, a fixed desk on the 11th floor was identified and the claimant was not required to hot desk. It found that additional screens were available on the 11th floor, that the claimant's insistence on working on the 6th floor meant she was not guaranteed a monitor there, and that the respondent did not apply the alleged standard-equipment PCP as pleaded. It also found insufficient evidence that internal resolution of workplace difficulties placed her at a substantial disadvantage, that external mediation was not a realistic solution in the circumstances, and that the respondent had taken reasonable steps regarding Aviva and occupational health access.

The disability-related harassment claim was dismissed. The tribunal found that HR, not Mr Brunton, contacted the police on 19 October 2017 because of concerns for the claimant's welfare, and that Mr Brunton and Ms Edwards acted out of concern when trying to speak with her on 20 October 2017. It found that the 3 April 2018 conduct was linked to implementing a suspension and not related to disability. The tribunal concluded that the conduct did not have the purpose, and did not objectively have the statutory effect, of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The direct race discrimination claim about pay was dismissed. The tribunal found that the claimant was in fact paid more than her named comparator Mr Finnegan in 2016 and 2017, and that differences between the claimant and other employees were explained by performance ratings. It found no evidence that pay differences were because of race. The religion or belief and sex discrimination claims were dismissed on withdrawal by the claimant, and the tribunal also stated that any equal pay claim failed because pay progression was determined by performance rating rather than sex.