Members: Peter O’Hagan Andrew Ross Ms C Divers v Represented by: Mr M Briggs -15 Solicitor The NIC Services Group Limited — 2018

Ms Divers, a cleaner with accepted learning difficulties, was dismissed after a final written warning, a "golden steps" review, informal coaching, and a disciplinary process concerning alleged aggressive behaviour, poor work performance, and failure to follow instructions. The tribunal accepted that she was disabled and that the respondents had provided support including a daily ticklist, but the dispute was whether dismissal was justified and whether the Equality Act duties were engaged.

On wrongful dismissal, the tribunal unanimously found that the respondents had not proved gross misconduct. It was not satisfied that the claimant's behaviour after transfer to Crossmyloof could properly be labelled aggressive; although poor performance and refusals to carry out tasks were established, those matters did not amount to a repudiatory breach. The claimant should therefore have been given notice or pay in lieu, and she was awarded £778.26, representing six weeks' wages.

By majority, the tribunal dismissed the unfair dismissal claim. It found the principal reason for dismissal was a composite of conduct, poor performance, and refusal to follow instructions. Applying the Burchell and Hitt approach, the majority held that the respondents had a genuine belief on reasonable grounds and had carried out a reasonable investigation, and that dismissal fell within the band of reasonable responses. Mr Ross dissented and would have upheld unfair dismissal and discrimination.

By majority, the tribunal also dismissed the disability discrimination claims. On reasonable adjustments, the proposed adjustment was more time before dismissal, but the majority held that would not have addressed the disadvantage identified because the continuing problems were not shown to flow from memory difficulty alone. On section 15, the majority held that dismissal was not shown to be because of something arising from disability and, in any event, was a proportionate means of achieving the legitimate aim of maintaining cleaning standards for the Morrisons contract. The separate claim for failure to provide written particulars failed because there was no supporting evidence and no successful underlying claim under section 38 of the Employment Act 2002.