Mr Whitehouse (Solicitor) For the v Respondent — 2022

The claimant was employed as a project manager from 29 June 2020 until his dismissal on 10 July 2020. The tribunal found that he was disabled within the meaning of the Equality Act 2010 by reason of atypical facial pain and occipital neuralgia. It accepted that the absences on 2, 3 and 9 July 2020 were caused by that disability, but found that the claimant had not disclosed his disability to the respondent before dismissal and that the first disclosure was on 16 July 2020, when he sought to appeal the decision.

The tribunal dismissed the s.13 direct discrimination claim because the dismissal was not because of disability. It found that the respondent did not know of the disability when it decided to dismiss, and that it would have dismissed any employee in the same circumstances. The tribunal also rejected the claimant's account that he had disclosed his disability at the return-to-work meeting on 6 July or before dismissal. It accepted that the reasons given for the absences were disability-related, but concluded that the dismissal itself was driven by concerns about poor performance and the failure to report absence.

The s.15 claim also failed, including the challenge to the refusal to hear an appeal. The tribunal found that the relevant treatment was not because of something arising from disability: the dismissal was based on conduct and performance issues, and the appeal refusal was treated as part of the same probationary decision-making. The tribunal held that the respondent had considered the disability when it rejected the appeal request, but that it would have refused an appeal from any employee with the same conduct and performance issues during probation.

The reasonable adjustments claim under ss.20 and 21 failed because the respondent did not have the requisite knowledge of disability until after dismissal. The indirect discrimination claim under s.19 failed because the claimant did not establish the pleaded PCPs: the tribunal found no evidence that the respondent had a practice of refusing to consider illness-related effects before dismissal decisions, and it rejected the assertion that the disciplinary and sickness absence policies operated as alleged. It also found that, although the contract excluded disciplinary and capability procedures during probation, the respondent's actual practice was to use return-to-work discussions and an informal disciplinary/capability process. The claimant's wages and holiday pay claims were withdrawn at the start of the hearing and dismissed. No monetary award was made.