Mr G Smallcombe v Shaw Trust Limited (The) — 2022

The tribunal dismissed all claims of disability discrimination, harassment and victimisation. It accepted that the claimant was disabled by reason of depression and mild anxiety, but found the respondent did not have actual or constructive knowledge of that disability until the claimant's grievance in May 2020. Before then, the claimant had presented himself as capable, said at interview that he needed no adjustments, and did not disclose ongoing symptoms to his managers.

On the facts, the tribunal found the claimant received substantial training and support, including an extended induction, repeated guidance on the MPS and RiO systems, and frequent supervision. It rejected the claimant's case that he had been set up to fail or subjected to a campaign of discrimination. The tribunal preferred the respondent's contemporaneous documents and witnesses, and found that criticisms made by Ms Smyth and others reflected genuine concerns about performance, the claimant's resistance to the IPS zero-exclusion principle, and failures to complete required tasks.

The tribunal rejected the harassment claim because the comments relied on were found to concern performance rather than disability, and most were in private emails not seen by the claimant at the time. The 'I can't hold your hand' remark on 3 March 2020 was treated as a robust comment in a heated discussion, but not conduct related to disability and not conduct having the prohibited purpose or effect.

The tribunal also rejected the discrimination arising from disability and victimisation claims. It found the claimant had not shown that the relevant treatment was because of something arising from disability, nor that his grievance alleging discrimination caused his dismissal. The tribunal found the dismissal followed three matters taken together: NHS management no longer wanted him working with service users after the testimonial emails, the respondent viewed his circulation of testimonials and related disclosures as misconduct, and there were continuing concerns about underperformance and unwillingness to follow management instructions.