Mr K Antwi-Boasiako (Legal Executive). For the v Respondent — 2021

Miss Boesi was employed by Asda as a Warehouse Operative and was dismissed on 13 June 2019 for incapability after a long period of absence linked to back pain and fibroids. The tribunal recorded that disability and employer knowledge were conceded. It accepted that healthcare leave had been granted, that occupational health and physiotherapy evidence was obtained in 2019, and that the physiotherapist reported she was not fit for any warehouse duties at that time.

The disability complaints failed. On the direct disability discrimination allegations, the tribunal rejected the claims about the move from Box Room to Hanging, the offer of healthcare leave instead of light duties, the alleged offers at the capability meeting, the alleged offers in April and May 2019, and the dismissal itself. It found that the claimant was not fit to return to work and that a hypothetical non-disabled comparator in the same circumstances would have been treated the same. On reasonable adjustments, the tribunal identified the PCP as a requirement to perform heavy warehouse duties, accepted that this placed Miss Boesi at a substantial disadvantage because of her back condition, but held that no reasonable adjustment was available because she was not fit for work in any warehouse role on the medical evidence. The tribunal noted that the 2017 Box-to-Hanging complaint was, as a free-standing point, out of time.

The race discrimination and victimisation claims also failed. The tribunal found that the named race comparators were not in materially similar circumstances and that the evidence did not support an inference that race explained the treatment complained of. On victimisation, it accepted that Miss Boesi had supported Mr Kuma in his sexual orientation discrimination complaint, but found that the relevant decision makers, Mr Williams and Mr Dodridge, did not know about that support. It also rejected the proposition that her requests for flexibility or lighter duties amounted to a protected act for the purpose of the Equality Act on the evidence given.

The unfair dismissal claim failed because the tribunal held that dismissal for capability was fair under s.98(4) ERA 1996 and within the band of reasonable responses. It found there had been consultation, meetings on 28 February, 5 March and 13 June 2019, medical input from occupational health and physiotherapy, and consideration of alternative work. The tribunal concluded that the respondent reasonably believed Miss Boesi was unfit to carry out her job and could not make reasonable adjustments, so the dismissal was fair in all the circumstances.