In person. For the v Respondent — 2019

The claimant, Mr Gordon Flemming, was employed as a motor vehicle technician from 2009 and the respondent admitted that he was a disabled person within the meaning of section 6 Equality Act 2010 by reason of mixed anxiety depression disorder. The tribunal found that, after workplace events in 2012 and 2013, the claimant’s health and ability to attend work deteriorated, a series of Occupational Health reports were obtained, and management did not adequately act on recommendations including external mediation and consideration of ill health retirement.

The tribunal held that the respondent’s handling of the matter became mechanistic and that the disciplinary route chosen for the claimant’s non-attendance at meetings was flawed. It accepted that the claimant’s conduct in refusing to attend meetings arose in consequence of his disability, within section 15 Equality Act 2010 and the approach in Risby and Weerasinghe, and found that dismissal was not a proportionate means of achieving a legitimate aim. The panel also found that the disciplinary process was unfair under section 98(4) ERA 1996, noting in particular the recorded comments made by the dismissing officer during adjournments and the failure to apply the Trust’s disability policy holistically.

The tribunal dismissed the remaining Equality Act claims. It rejected direct disability discrimination because there was no evidence that a hypothetical non-disabled comparator would have been treated differently. It dismissed the reasonable adjustments complaint because no relevant provision, criterion or practice was properly identified and the adjustments contended for were unclear. Victimisation failed because the claimant had not identified a protected act. Harassment was also dismissed; the tribunal held that the complained-of comments in the adjournment were made in a private setting and, alternatively, that parts of the complaint were out of time and no extension was justified.

A remedy hearing was listed for 4 February 2019 at Norwich Employment Tribunal. This judgment did not determine compensation or any final monetary award.