Mrs A Stempien-Wyrwal For the v Respondent — 2020

On 10 December 2020 Employment Judge S Moore varied the judgment of 13 August 2020 and struck out the first claimant’s unfair dismissal and disability discrimination claims in case 3328257/2019. The application was brought under rule 37, with an alternative deposit order reference under rule 39, on the basis that the claims had no reasonable prospect of success.

The tribunal recorded that the first claimant had been employed from 2 February 2009 to 2 October 2019. It noted a written warning about alcohol use in January 2019, a suspension in July 2019 after alcohol-related incidents, several rearranged disciplinary hearings because of his absence in Poland, and a dismissal letter stating the reason as erratic behaviour while under the influence of alcohol putting the business at risk. The claimant later produced medical evidence referring to depressive disorders and alcohol abuse, and said he believed the dismissal was discriminatory because the respondent relied on alcoholism as a side-effect of depression.

For the disability discrimination claim, the tribunal accepted that the claimant may have had depression and alcohol problems, but held that there was no reasonable prospect of finding that depression was the effective cause of dismissal. It cited Wood v Durham County Council UKEAT/0099/18/00 and stated that, if the reason for dismissal was alcohol-related behaviour, the fact that the underlying cause of the addiction might be depression did not assist the claim because alcoholism is excluded from protection under the Equality Act 2010.

For unfair dismissal, the tribunal found the claimant had been told the reason disciplinary action was being taken, had the opportunity to attend a hearing, and chose not to appeal. It therefore concluded that the unfair dismissal claim was fanciful and struck it out as well.