Mr. D Birmingham v Abellio East Anglia Limited — 2019

Mr D Birmingham was a train driver with overactive bladder syndrome, which the parties accepted was a disability and that Abellio East Anglia Limited knew about. The tribunal found that the June 2018 incident had to be understood against a wider background of delay logs, grievance correspondence, and earlier discussions about the claimant's need for personal needs breaks, but the claims before it were confined to one exchange on 19 June 2018.

The tribunal accepted that Mr Smithson told the claimant that he had contributed to the train delay because he had gone to the toilet and asked him to add that to the delay report. It found that this was an enquiry about a discrepancy between the driver's report and the operational log so that the records matched, rather than blame or disciplinary action. On that basis, the direct discrimination claim failed because the tribunal did not regard the request as less favourable treatment, and it said a non-disabled driver taking frequent toilet breaks would have been treated in the same way.

On the section 15 claim, the tribunal accepted that the need for toilet breaks arose in consequence of the claimant's disability and that the conduct was because of that need. It nonetheless held that being asked to ensure the report and the log were consistent, with no disciplinary action or other penalty, was not unfavourable treatment. In any event, the tribunal said the request for accurate logs was a proportionate means of achieving the legitimate aim of running an efficient and timely train service. The harassment claim also failed because the tribunal held that the single request was not unwanted conduct for section 26 purposes and did not have the necessary purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

No remedy was awarded because all three claims were dismissed.