: N Elliot & W Muir Miss A v Represented by: Ms H Hiram - Non practising solicitor DSR Restaurants Ltd t/a McDonald’s — 2019

The claimant worked for DSR Restaurants Ltd t/a McDonald's from 13 December 2015 until 8 December 2019 as a crew member. The tribunal found that she had a mental impairment of stress and anxiety from 4 October 2017, that the effect became long-term by 3 October 2018, and that the respondent ought reasonably to have known of the disability by 2 November 2019 when she returned to work after an extended absence.

The constructive dismissal complaint failed. Although the tribunal accepted that on 24 November 2019 EP told the claimant to work the seven-hour shift or face the consequences, it held that this was not itself a repudiatory breach. It found no valid verbal agreement that she would only work six-hour shifts, no failure to deal with the claimant's complaints or the July 2019 grievance, and no cumulative course of conduct that destroyed trust and confidence. The tribunal concluded that the claimant resigned voluntarily rather than in response to a constructive dismissal.

The discrimination arising from disability claim under section 15 EqA was dismissed. The tribunal found that requiring the claimant to work the seven-hour shift on 24 November 2019 was not unfavourable treatment on the facts found, because she had already worked earlier seven-hour shifts after her return and the fit note referred only to six-hour shifts 'initially'. It also held that the claimant had not shown that an inability to work the longer shift arose in consequence of her disability.

The reasonable adjustments complaint also failed. The tribunal did not accept that there was an agreed PCP requiring the claimant to work no more than six-hour shifts, or that a PCP of insisting on longer shifts as initially agreed had been made out on the evidence. It further found that the claimant had not proved the alleged substantial disadvantage, and that the respondent could not reasonably have been expected to know that she needed more medication for a seven-hour shift than a six-hour shift.

The harassment complaints related to February and May 2018 were dismissed because the tribunal found that the claimant was not disabled before 3 October 2018, so those allegations fell outside its jurisdiction. The allegation that EP refused a shorter shift on 24 November 2019 was rejected on the merits, with the tribunal finding that the fit note referred to six-hour shifts initially but did not support the wider case advanced by the claimant. The victimisation complaints based on the 2017 grievance were held out of time and not just and equitable to extend, and the later 2018 and 2019 allegations were dismissed because they were not accepted as protected acts or were otherwise not well founded. No monetary award was made.