Ms M Morley v London Borough of Waltham Forest — 2019

The claimant was dismissed on 19 April 2018 following the respondent's managing sickness absence procedure. The tribunal found the reason for dismissal was poor attendance due to sickness, a capability reason under s 98(2)(a) Employment Rights Act 1996, and that dismissal was within the range of reasonable responses under s 98(4). The unfair dismissal claim was also out of time under s 111 ERA 1996.

The tribunal found the race and sex comparators relied on by the claimant were in materially different circumstances. The direct race and direct sex complaints therefore failed under the comparison required by s 23 Equality Act 2010. The indirect sex discrimination complaint about withdrawal of Monday working from home also failed; the tribunal accepted that the respondent's approach was a proportionate means of achieving a legitimate aim.

For disability, the tribunal accepted that irritable bowel syndrome was a disability known to the respondent, but did not accept that rhinitis or depression were qualifying disabilities on the evidence. It found the reasonable adjustments complaints failed because the sickness absence triggers, withdrawal of Monday working from home, occupational health referral issue, dismissal appeal, and contact during absence did not require the adjustments alleged. The tribunal also found no direct disability discrimination in the dismissal.

The tribunal found most discrimination matters were out of time, apart from the appeal against dismissal, but extended time on just and equitable grounds under s 123 Equality Act 2010. The claimant's age discrimination claim had already been struck out, and a mileage claim was recorded as settled.