In person For the v Mr C Cuckney, Solicitor — 2020

Mr Moghul worked for Slough Borough Council from 1997 and was a business support officer from February 2017. He was absent from June 2017 with low back pain, later reactive depression, anxiety and panic attacks. The tribunal accepted, and the respondent conceded, that he was a disabled person by reason of musculoskeletal pain, anxiety and depression, with employer knowledge from November 2017 onwards. It also recorded that the breach of contract and unpaid annual leave claims had been dismissed on withdrawal at a preliminary hearing on 7 August 2019.

On the factual allegations about day-to-day management, the tribunal preferred Mrs Bhatti's contemporaneous notes and found that the claimant was given light duties, one task at a time, training and support, a chair adjustment, and regular one-to-one oversight during his phased return. It rejected the allegations that she was hostile, ignored the DWP job-retention email, unilaterally changed the phased return, or made the challenged comments about GP appointments and sickness. The email forwarded on 22 January 2018 was held to be a protected act for victimisation purposes, but the tribunal found that the later treatment was not because of that email.

On the disability discrimination claims, the tribunal held that the dismissal was for capability caused by long-term sickness absence rather than because of disability itself, and that GS and JC were not suitable comparators. For the s.15 claim, it found that the refusals of temporary part-time working and further consideration of redeployment were unfavourable treatment arising in consequence of the claimant's sickness absence, but those decisions were a proportionate means of achieving the legitimate aim of protecting service efficiency. The indirect discrimination claim failed because there was no evidence that people sharing the claimant's conditions were put at a particular disadvantage, and the reasonable adjustments claim failed because the claimant had already been given reduced hours, support, an adjusted chair, and no further reasonable step was identified.

The unfair dismissal claim was dismissed. The tribunal found that the respondent had carried out a reasonable capability process under s.98 ERA 1996, with stage 1 and stage 2 absence-management meetings, occupational health input, consultation, and an internal appeal. A majority found that the late June 2018 occupational health reports were before Mr Carter when he decided to dismiss, and the tribunal held that the dismissal on 4 July 2018, effective 6 July 2018, was fair in all the circumstances and not too hasty given the length of the unsuccessful phased returns. The harassment claim was also dismissed because the tribunal did not consider the conduct, viewed objectively, to have the purpose or effect required by s.26 EqA, and it found that the dismissal itself did not amount to harassment.