R Morton (counsel) For the v Respondent — 2023

Jack Clarke worked for Marks and Spencer plc from 12 July 2015 until his dismissal on 2 July 2022. The tribunal accepted that he had autism and found that its effects included difficulty with social cues, change to routine, and periods of becoming overwhelmed. After a complaint in December 2020 about his behaviour towards a colleague, the respondent took no disciplinary action, referred him to occupational health, and received advice about communication, a WRAP plan, and support needs. In 2021 the claimant was moved between stores and shifts, and the tribunal found that a stable 12:00 to 20:00 bakery shift arrangement introduced in May 2021 initially reduced problems, but that support measures and workplace assessments were not then properly progressed.

The tribunal extended time for discrimination allegations arising before 22 June 2022 to 2 November 2022, applying British Coal Corporation v Keeble, Southwark London Borough Council v Afolabi and Rathakrishnan v Pizza Express (Restaurants) Ltd. It treated some allegations as continuing conduct and considered a series of PCPs, including flexibility in shifts and locations, informal rather than scheduled management check-ins, the expectation that staff remain on the shop floor, the handling of occupational health advice, and the way colleague complaints were investigated.

On indirect discrimination, the tribunal upheld the claim in part. It found that PCP D, the practice of informal ad hoc check-ins rather than scheduled meetings, put autistic employees at a particular disadvantage and was not justified. It rejected PCP A as justified by the respondent's operational needs, and it found that PCP E and PCP H failed because group disadvantage was not proved on the evidence. On reasonable adjustments, the tribunal held that the respondent failed to make reasonable adjustments in relation to stable shift patterns, regular scheduled meetings, allowing the claimant to leave the shop floor when overwhelmed, and general disability awareness training for colleagues.

On discrimination arising from disability, the tribunal accepted the claimant's evidence that his 4 June 2022 conduct arose from autism and that he had no sexual intent. It found that the conduct had to be viewed in the context of the claimant becoming overwhelmed by changes to routine and workload, and that dismissal was not a proportionate means of achieving the legitimate aim of safeguarding. On victimisation, the tribunal found that the claimant had done protected acts during the 20 and 30 June 2022 meetings by raising disability-related complaints, but there was no evidence that the disciplinary process or dismissal was because of those acts, so that claim failed.

The unfair dismissal claim succeeded. Applying s.98(4) ERA 1996 and the Burchell approach, the tribunal held that the respondent had not carried out a reasonable investigation and did not have reasonable grounds for its belief that the claimant was guilty of gross misconduct. It noted that the decision-maker did not properly consider whether the conduct was deliberate or wilful, did not use the occupational health material already available, and relied on incomplete or inaccurate material from the investigation. This was a liability-only reserved judgment and it records no monetary award.