In person For the v Ms H Groves, HR Advisor for the Respondent Interpreter: Mr B Sous, Hungarian speaking — 2021

The claimant was employed by the respondent as a Security Officer from 6 September 2018 and was on a six month probationary period. The tribunal found that he was seen asleep on duty on 24 January 2019 and again on 26 February 2019. After the second incident the client requested his removal from the site, and Mr Walthew decided that the claimant should fail his probation period. The tribunal found that the failure of probation was because he was believed to have been asleep on duty on two occasions during probation.

The tribunal found that the claimant did not tell the respondent about his hypertension, high blood pressure, or non-healing ankle ulcer before dismissal. It accepted that the claimant had mentioned a low blood sugar issue during the 25 January 2019 discussion with Mr Mallon, but found that this did not amount to disclosure of the disability relied on in the claim. The tribunal found that Ms Brown, Mr Mallon, Mr Walthew and Mr Smith did not know that the claimant had a physical impairment with a long-term adverse effect on normal day to day activities, and did not reasonably have such knowledge. On that basis, the claims under s.13, s.15 and ss.20-21 EqA 2010 failed.

On direct discrimination, the tribunal found that the claimant was not treated less favourably because of disability and that he failed to establish primary facts from which discrimination could be inferred. On discrimination arising from disability and reasonable adjustments, the tribunal held that the lack of the respondent's knowledge of disability was fatal to the claims. The tribunal also said that the claimant would have been dismissed if any employee had been thought to be asleep on duty in the same circumstances.

The harassment complaint concerned the claimant being shown the photograph of him apparently asleep on 24 January 2019. The tribunal accepted that this was unwanted and that he was embarrassed by it, but found that the conduct related to the belief that he had been sleeping on duty, not to his disability. It said the available medical evidence did not permit a finding, on the balance of probabilities, that the conduct was related to disability. The tribunal therefore dismissed the harassment complaint as well. No monetary award was made.