Mr T Goodwin, Counsel For the v Respondent — 2021

Miss Barnes worked for Marina Developments Limited as an office administrator from 1 August 2016. After developing severe anxiety disorder and being off work from 31 March 2018 until 22 January 2019, she returned on a phased plan. The tribunal considered harassment related to disability, direct disability discrimination, discrimination arising from disability, and constructive unfair dismissal.

On harassment, the tribunal rejected the allegations about insufficient contact during absence, cancelled reviews, and failure to refer to occupational health. It upheld, taken together, the allegations about not allowing her to return to her previous workstation, removing her from the key telephone number list, removing her name from trays, failing to provide an adequate workstation, changing her responsibilities, and excluding her from office niceties. It found those matters were connected to her mental ill health, created the proscribed environment, and formed a continuous course of conduct that was in time.

The direct discrimination claim failed. The tribunal found that the respondent had made sufficient attempts to keep in touch, that the missed reviews were by agreement, and that there was no legal obligation to refer Miss Barnes to occupational health. It held there were no facts from which it could infer that any less favourable treatment was because of disability. By contrast, the claim for discrimination arising from disability succeeded in relation to the workstation, telephone list, trays, responsibilities, and exclusion from office niceties, which were unfavourable treatment arising from her absence and disability and were not justified. The claims about the change of hours, the contact arrangements, the reviews, and the occupational health referral failed.

On constructive unfair dismissal, the tribunal held that Miss Barnes resigned because of the harassment and the discrimination arising from disability, amounting to a fundamental breach of the implied term of mutual trust and confidence. It found that she did not affirm the contract by waiting for alternative employment or by giving notice while remaining employed.

The tribunal awarded compensation of £16,636.30. That sum comprised £1,516.59 for loss of earnings and loss of statutory rights, £13,000 for injury to feelings, and £2,119.71 interest at 8% from 23 June 2019 to 27 May 2021. It recorded that the recoupment provisions did not apply.