Ms XYZ v Network Rail Infrastructure Limited — 2021

The tribunal found that the Claimant had a disability within section 6 Equality Act 2010 before September 2014, but that the Respondent did not know and could not reasonably have been expected to know that she met the statutory definition until after the May 2016 occupational health report. It found no direct disability discrimination, no indirect disability discrimination and no failure to make reasonable adjustments. It upheld the section 15 disability discrimination claim only in relation to the suspension around 14 November 2016 and the failure to provide the grievance appeal outcome before employment ended, because those matters were unfavourable treatment arising from disability and were not shown to be proportionate.

The direct sex discrimination complaint failed. The equal pay complaint also failed: although the Claimant and her male comparator were employed on like work, the Respondent proved that the pay difference was due to material factors, including the comparator retaining a higher salary from a previous role, his greater experience in the team, additional duties and MSP qualification, rather than sex.

The whistleblowing detriment complaints were dismissed. The tribunal found that the May 2016 grievance and later amplified grievance were protected disclosures, but accepted that none of the alleged detriments occurred because of protected disclosures. The victimisation claim was also dismissed; the tribunal found the alleged protected acts were not the reason for the treatment complained of.

The tribunal found that the Claimant resigned with immediate effect on 4 March 2017 after deciding to leave for a new job. It held that she was not constructively dismissed: the matters relied on, including the delayed grievance appeal outcome, did not objectively amount to a repudiatory breach of the implied term of trust and confidence, and the Claimant had not resigned in response to a last straw. All dismissal-based complaints therefore failed.