Mrs T Fayokun v Johnson & Johnson Medical Limited — 2024

The tribunal found that Mrs T Fayokun, employed by Johnson and Johnson Medical Limited from 24 April 2017 until dismissal on 10 January 2020, succeeded only on one race discrimination complaint. It held that Alessandra Toro's use of the Berlitz cultural-fluency profiling exercise in April 2018, together with comments about Nigerian working style and "Nigerian traits", subjected the claimant to a detriment and was less favourable treatment because of her Nigerian nationality. Time was extended on a just and equitable basis for that complaint.

The remaining race allegations were dismissed, including the "African Lioness" and "human way" comments and the wider complaints about management of the claimant's work. The tribunal also dismissed the religion or belief discrimination claim, finding no evidence that the treatment complained of arose from the claimant's Christian religion or beliefs, and it dismissed the harassment claim and the victimisation claim. It accepted that the claimant had done protected acts, but was not satisfied that the pleaded detriments were proved.

The unfair dismissal complaint was dismissed. Applying section 98 of the Employment Rights Act 1996, the tribunal found that capability was the reason for dismissal, that the claimant had been off work for almost a year with no foreseeable return-to-work date, that occupational health material did not indicate a likely return, and that the respondent had consulted the claimant and followed a fair process. The dismissal was held to be within the range of responses open to a reasonable employer.

On disability, the tribunal found that by about October/November 2019 the claimant had a mental impairment with a substantial, long-term adverse effect and that the respondent knew or ought reasonably to have known this. Even so, direct disability discrimination and discrimination arising from disability were dismissed because the tribunal found the management and dismissal decisions were not taken because of disability and that the challenged communications were not unfavourable treatment. The reasonable adjustments claim also failed: although the claimant was at a disadvantage in not having a clear prognosis or return date, the tribunal did not identify any adjustment that would have enabled a return to work and accepted that the respondent had already made several practical accommodations. No compensation was awarded in this liability judgment, the tribunal listed the case for a remedy hearing, and it left personal injury causation for that later stage.