Mrs M O’Donnell v Wokingham Borough Council — 2019

The claimant was a wheelchair user with a long-term neurological disability, which the respondent accepted. The tribunal heard the merits on liability only and listed a separate remedy hearing. It found that the claimant was disadvantaged in a number of ways during the employment relationship and the 21st Century Council restructure, and it dealt separately with direct disability discrimination, four reasonable-adjustments complaints, and unfair dismissal.

On direct disability discrimination, the tribunal found that the claimant was the better candidate for the vacant Grade 11 role in November 2016, that Ms Rees was appointed instead, and that the respondent had not shown that the decision was in no sense whatsoever because of disability. The tribunal relied in particular on Mr Feven's comments about disabled people taking sick leave and on the inaccurate feedback given to the claimant about her experience, and it concluded that the burden of proof shifted to the respondent and was not discharged.

On reasonable adjustments, the tribunal found that the office layout on the first floor restricted the claimant's wheelchair access to a desk used by her team and that this created a substantial disadvantage in managing her staff. It also found that for at least two years before termination the respondent had carried out no emergency risk assessment for the claimant and had not put a Personal Emergency Evacuation Plan in place, despite the claimant working on the first floor and using a wheelchair. In both respects the tribunal found that reasonable adjustments should have been made.

The tribunal also held that the restructure selection process gave rise to a failure to make reasonable adjustments. It found that the claimant was substantially disadvantaged by having to complete expressions of interest and take part in an interview and selection process while in severe pain, on strong medication, and after two operations. It accepted that the respondent had partially used the expression of interest as a paper-based assessment for the Grade 11 role, but held that this did not remove the disadvantage. It concluded that assimilation to the Grade 11 role, or waiting until the claimant had recovered so that she could take part in a proper selection process, would have been reasonable adjustments. It also found that the refusal to allow her to use three weeks of annual leave during sickness absence was a discriminatory practice.

On dismissal, the tribunal found that the claimant's employment ended by a dismissal for redundancy on 31 May 2017, not by mutual agreement, and that the dismissal was unfair. It accepted that redundancy was a potentially fair reason, but held that the respondent had not given proper consideration to suitable alternative employment, had not adequately considered the Grade 11 role as a suitable alternative or trial placement, had not properly considered other vacancies, and had ended the employment almost immediately rather than giving full notice. The tribunal held that the complaints at issues 9.3, 9.4 and 10 were in time, and that issues 8, 9.1 and 9.2 were either continuing acts or, alternatively, should be heard out of time as just and equitable.