Mrs D Barker (Claimant’s mother) For the v Respondent — 2019

Miss Barker worked for Marks and Spencer as a customer assistant from 28 April 2013. She had LCHAD deficiency, a serious metabolic condition, and the respondent knew of it from the outset. In early 2018 the store reorganised shifts to meet delivery arrangements. After meetings on 19 February, 23 March and 5 April 2018, the respondent proposed new hours including Friday 10:00-16:00, while Miss Barker said she could not work after 3pm because of her diet, fatigue and inability to drive in the dark. Ms Hurrell said occupational health would be arranged, but no referral was made before the new hours were imposed.

The tribunal dismissed the disability discrimination claim. On direct discrimination, it found that a non-disabled comparator in the same position would have been treated the same way and that there was no basis for concluding the hours change was imposed because of disability. On the s.15 claim, the tribunal said there was no medical evidence that Miss Barker could not work beyond 3pm because of her disability, and it found that the case she put to the respondent focused on diet and night driving rather than on tiredness after 3pm. It also rejected the associated harassment allegations and the wider discrimination-based dismissal / reasonable adjustments arguments.

The tribunal accepted that Ms Hurrell chuckled when Miss Barker said she could not see in the dark, but held that this did not amount to harassment. It did not accept the allegation that Ms Woodley told Ms Colk that there was nothing wrong with Miss Barker and that she should change her hours like everybody else, and it found Ms Saunders’ questions in the appeal about meal routines were appropriate to the issues under appeal.

The claim for constructive unfair dismissal succeeded because the tribunal found the failure to refer Miss Barker to occupational health, despite repeated requests and an earlier assurance, was without reasonable and proper cause and undermined mutual trust and confidence. Miss Barker resigned on 17 July 2018 in response to that breach. Remedy was left to a later hearing.