In person For the v Ms Peckham (solicitor) — 2022

The claimant was employed from 18 April 2017 and was dismissed by letter dated 22 May 2020 after an incident on 16 March 2020. The tribunal found that he swore at Paul Herting, raised his voice, became agitated and walked out. It accepted that conduct was the principal reason for dismissal and held, applying s.98(4) ERA 1996, the Burchell test and Iceland Frozen Foods, that the respondent had a genuine belief on reasonable grounds after a reasonable investigation and that dismissal fell within the range of reasonable responses.

The respondent accepted that the claimant was disabled within the meaning of the Equality Act 2010, but the tribunal found it did not have actual or constructive knowledge until 30 April 2020 for the purposes of anxiety and depression, with OCD only being expressly mentioned at that meeting. Most of the section 15 allegations about July, September and later 2019 conduct failed either because the facts were not made out or because they predated knowledge. For the dismissal complaint, the tribunal was not persuaded that the claimant established a causal link between disability and the outburst: the contemporaneous references were to heightened anxiety, there was no medical evidence supporting the connection, and the tribunal did not accept that the outburst arose in consequence of disability.

In any event, the tribunal found that the respondent's aim of protecting staff health and safety was legitimate and that dismissal was a proportionate means of achieving that aim. It also held that the ACAS disciplinary procedure had been followed in substance, notwithstanding concerns about the technology failure on 14 May 2020 and the late disclosure of one witness statement. The alternative possibility of a lesser sanction was considered, but the tribunal found that dismissal was open to a reasonable employer on these facts.

The reasonable adjustments complaint also failed. The September 2019 timekeeping warning was sent before the respondent had knowledge of disability and, even if knowledge had existed, the tribunal found no sufficient evidence that the claimant was placed at a substantial disadvantage by the warning. The hand delivery of grievance and disciplinary papers during lockdown did not amount to an actionable disadvantage on the evidence, particularly because postal delivery had already failed and the claimant had not identified a clear disability-related disadvantage from the method used. The pleaded PCP that the respondent dismissed employees for inappropriate conduct was rejected as not capable of amounting to a PCP on these facts. The remedy hearing was vacated and no award was made.