Ms Grossman (counsel) For the v Mr O’Neill (solicitor) — 2021

The Claimant, a cleaning operative employed since February 2018, had cancer and was accepted to be disabled within section 6(1) Equality Act 2010. After a phased return to work from 3 February 2020, she was working two shifts per week rather than her full contracted six shifts. The period in issue was 25 March 2020 to 30 June 2020, when she was shielding under GP fit notes during the first wave of the Covid-19 pandemic and continued to be paid for two shifts per week.

On the unlawful deductions claim, the tribunal struck out the bases said to arise from an entitlement to be furloughed and/or to receive SSP during the shielding period. It accepted that, before shielding, the Claimant was only being paid for two shifts per week and had exhausted SSP. The argument that the Respondent's internal 'Isolation Scenarios' document entitled her to full contractual pay was not struck out, but the tribunal considered that the phrase 'full pay' was likely to mean the pay she would have received had she not been shielding, rather than full contractual pay irrespective of her fitness to work. That point was left to final evidence, but a £1,000 deposit was ordered because the tribunal considered the argument to have little reasonable prospect of success.

For the section 15 discrimination arising from disability claim, the tribunal considered the Respondent's reliance on Williams v Trustees of Swansea University Pension and Assurance Scheme and said there was considerable force in the argument that paying the Claimant for two shifts only, when she had been allowed a phased return, may not amount to unfavourable treatment. The allegation that she was not paid for her full contractual role was not struck out, but a £1,000 deposit was ordered. The separate allegation that the Respondent said it could not determine whether she was fit to complete the full return-to-work period because there had been no welfare check-in meeting was struck out because the Claimant had not advanced a positive case that such a meeting would have enabled her to increase her hours.

On reasonable adjustments, the tribunal identified two PCPs: paying the Claimant at a lower rate than her contractual role during the shielding period, and not placing employees at her site on furlough. It considered that the disadvantage point was difficult because the Claimant compared herself with non-disabled employees who would have continued working and receiving full salary, while she continued to receive the pay associated with her agreed two-shift pattern. The tribunal did not strike out either allegation, but held that both had little reasonable prospect of success and ordered deposits of £1,000 for each. It set the total deposit order at £4,000, required any partial payment to identify which allegations were to proceed, and excluded itself from the final hearing after giving these preliminary views.