Case 3306652/2018 · Employment Tribunal
Ms A Hart, Counsel. For the v Respondent — 2019
- Case reference
- 3306652/2018
- Decision date
- 19 November 2019
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Laidler Members
- Venue
- Bury St Edmunds
- Panel members
- Mr C Davie, Mrs CA Smith
Parties
1 namedClaimant
Ms A Hart, Counsel. For the
Respondent
- —
Key findings
Tribunal's reasoningThe claimant was employed as a sales assistant/train dispatcher and the tribunal found she was disabled within the meaning of the Equality Act 2010 by reason of Bipolar Affective Disorder. After a period of sickness absence from June 2017, the tribunal accepted that occupational health was discussed at the 24 August 2017 welfare meeting, but found that the later delay in progressing medical input was not shown to be because of her disability.
The direct discrimination claim failed on each pleaded detriment. Although the tribunal found that an occupational health appointment should have been arranged after the August 2017 meeting, it did not accept that the failure was because of the claimant's mental health condition. It also rejected the suggestion that the respondent adopted a passive or inflexible approach to the treating psychiatrist, and held that the 23 January 2018 ill-health proposal was not a dismissal and did not amount to less favourable treatment.
The s.15 claim also failed. The tribunal held that the reduction to half pay, later cessation of pay, the use of annual leave in December 2017, and the ill-health proposal were not unfavourable treatment because of something arising in consequence of disability. In any event, the respondent's aim of ensuring employees were fit and able to perform their duties was legitimate and the approach was proportionate. The judgment records that the respondent later reimbursed the deducted sick pay, with a June 2018 payslip showing £4,188.64.
On reasonable adjustments, the tribunal accepted that requiring the claimant to work in accordance with her contract was a PCP and that it placed her at a substantial disadvantage, but held the respondent acted reasonably by seeking specialist medical evidence and occupational health advice before permitting a return to work. It further held that the sick pay cap in clause 11 did not put her at a substantial disadvantage, and in any event reasonable steps had been taken. The claimant returned to work on a phased basis from 12 March 2018 after an occupational health review on 7 March 2018.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Direct disability discrimination under s.13 EqA 2010. The pleaded detriments included the delay in arranging an occupational health appointment after the 24 August 2017 welfare meeting, failure to arrange the recommended OH meeting after the 18 October 2017 report, the approach to the treating psychiatrist, allowing return to work only after March 2018, and the 23 January 2018 ill-health proposal. The tribunal accepted there was delay and some failure to progress matters, but found no evidence that this was because of the claimant's disability. | Dismissed | Disability | — |
| Disability discrimination | Discrimination arising from disability under s.15 EqA 2010. The alleged unfavourable treatment was reduction to half pay from October 2017, cessation of pay from February 2018, requiring use of annual leave in December 2017, and the 23 January 2018 ill-health proposal. The tribunal held that this was not unfavourable treatment because of something arising in consequence of disability; alternatively, it would have been justified by the legitimate aim of ensuring employees were fit and able to undertake their duties. The judgment records that the respondent later reimbursed the deducted sick pay. | Dismissed | Disability | — |
| Disability discrimination | Failure to make reasonable adjustments under s.20 and s.21 EqA 2010. The tribunal accepted that requiring the claimant to undertake her duties in accordance with her contract was a PCP and that it placed her at a substantial disadvantage, but held the respondent took reasonable steps by seeking medical evidence and occupational health advice before allowing a return to work. It also held that clause 11, capping sick pay, did not place the claimant at a substantial disadvantage; alternatively, reasonable steps had been taken. | Dismissed | Disability | — |
Legal tests applied
6 references- s.13 EqA 2010 direct discrimination comparator approach
- Shamoon v Chief Constable of the RUC
- s.15 EqA 2010 proportionality and legitimate aim
- s.20 and s.21 EqA 2010 reasonable adjustments
- s.136 EqA 2010 burden of proof
- Meikle v Northamptonshire County Council
Official outcome judgment PDF
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