Miss L Whyman v Gristwood and Toms Limited — 2022

The claimant, an administrator with rheumatoid arthritis, had been advised to shield during the Covid-19 pandemic. The tribunal found that the respondent knew of her disability and shielding status. It accepted that the respondent later required administrative staff to attend the office one or two days per week from the week commencing 3 August 2020, and that the claimant repeatedly raised concerns about returning to the office as shielding guidance changed during the summer of 2020.

On 5 August 2020, after the claimant asked to continue working from home, Mr Toms told her she was required to return to the office that day and referred to SSP if anxiety prevented her from returning. The claimant resigned before the deadline he had asked for. The tribunal held that the requirement to attend the office, and the respondent's handling of the claimant's request to work from home, breached the implied term of mutual trust and confidence. It therefore found constructive unfair dismissal. It also recorded that no deduction would be made for contributory conduct or under Polkey, but remedy was left for a later hearing.

The automatic unfair dismissal claim under section 100(1)(d) ERA 1996 failed. The tribunal found that the claimant's resignation email acknowledged that measures had been put in place, that the office risk assessment made provision for shielding staff, and that the claimant had already gone outside her shielding bubble on several occasions. It concluded that she was not refusing to return in circumstances of danger which she reasonably believed to be serious and imminent and which she could not reasonably have been expected to avert.

The disability discrimination claims succeeded. On section 15, the tribunal found that from 22 July 2020 the prospect of having to work in the office caused the claimant stress and anxiety arising from her disability, and that the requirement to attend the office was unfavourable treatment. It held that the respondent had not shown a legitimate aim for the treatment on the balance of probabilities and had not considered alternatives. On section 19, the same office-attendance PCP was found to put disabled people, including the claimant, at a particular disadvantage and to be unjustified. On reasonable adjustments, the tribunal found the respondent knew the claimant was likely to be disadvantaged but did not take reasonable steps to avoid that disadvantage, including by considering home working or other adjustments. The case was listed for a separate remedy hearing on 24 October 2022.