Ms L Budge v Represented by: Mr T Emslie-Smith - Solicitor User Testing Limited — 2024

Ms L Budge had myalgic encephalomyelitis, which the tribunal found to be a qualifying disability under section 6 EA 2010 from the start to the end of her employment. The respondent knew about the condition from the claimant’s third day of employment, and the tribunal accepted that stress worsened her symptoms, including pain, fatigue and the need to rest. It also found that she worked in a demanding security leadership role, that her team was the only team with women in it, and that her performance had previously been strong.

The disability discrimination claims succeeded in part. The tribunal found direct disability discrimination because the respondent imposed a heavy workload, required work during annual leave and sickness absence, and continued to make short-notice demands despite repeated complaints about exhaustion and illness. It also found that the claimant was directly disadvantaged by PCPs of an unreasonably high workload, reduced resources and working while off work, and that reasonable adjustments should have included managing her workload, providing an ergonomic assessment and adapted chair, providing a suitable rest space, and making a parking space available. The section 15 claim failed because the tribunal held that the treatment arose because of her disability rather than in consequence of it.

The sex discrimination claim also succeeded. The tribunal accepted evidence that GAC regularly interrupted and spoke over the claimant, used Spanish with male colleagues knowing she could not speak Spanish, communicated in a demanding and unprofessional manner, spoke over junior female colleagues, and required excessive short-notice work and late-night messages. Applying the section 136 burden of proof, it found these facts supported an inference that the claimant was treated less favourably because of sex and that a male comparator would not have been treated in the same way.

The claimant also succeeded on unfair constructive dismissal. The tribunal held that the repeated failures to make reasonable adjustments, together with XF and GAC’s conduct over a prolonged period, amounted objectively to a repudiatory breach of the implied term of mutual trust and confidence. It found that the 10 September 2024 meeting was the last straw, that the claimant resigned by letter on 12 September 2024 in response to the breach, and that there was no potentially fair reason for dismissal under section 98(4) ERA 1996. The hearing was on liability only and remedy was reserved, so no monetary award was made in this judgment.