In person For the v Miss Rosine Dawson (Solicitor) — 2020

The claimant was employed as a kitchen designer from 18 December 2017 and resigned with immediate effect on 23 November 2018. He brought claims arising from the respondent’s extension of his probationary period, the payment of only statutory sick pay after he went off sick on 4 June 2018, and alleged disability discrimination. The tribunal accepted that he was disabled by reason of anxiety and autism, but the respondent disputed knowledge of the disability at the material times.

The tribunal found that the respondent did not have actual knowledge of the claimant’s disability and could not reasonably have been expected to know of it. It found that the respondent’s knowledge developed only gradually: first from the June 2018 fit note describing fatigue, then from the claimant’s own reference on 31 July 2018 to mental and physical health issues of which anxiety formed an element, and later from the grievance of 18 September 2018 referring to mental and physical exhaustion and a pre-diagnosis of autism. It found the respondent made all reasonable enquiries in light of what it knew, and that the claimant declined occupational health involvement and wanted the matter to remain private.

On the discrimination claims, the tribunal dismissed both direct discrimination and discrimination arising from disability. It held that the non-payment of contractual sick pay was not less favourable treatment because a non-disabled employee on sick leave during probation would also not have been paid contractual sick pay. On the contract claims, the tribunal found the respondent was entitled to extend probation. Although there was no express contractual power to do so and the claimant had not agreed a variation, the employee handbook made clear that probation could be extended, and the tribunal found that term was part of the contract and would in any event be implied. It also found that the claimant was aware from 29 May 2018 that his probation had been extended.

The tribunal further found that the respondent was not in breach of contract in extending probation or in paying only statutory sick pay when the claimant went off sick. It found that the claimant was not dismissed and had resigned his employment. For those reasons, all claims were dismissed and no remedy was awarded.