: Mr MacFarlane and Mr Muir Mr S Whitton v Represented by: Mr T Pacey – Counsel Construction Labour Supplies Limited — 2019

The tribunal found that the claimant was a disabled person within section 6 of the Equality Act 2010 during the relevant period from March to November 2018. It accepted that he had a heart condition, superior quadrantanopia, fifth disease and a prior stroke, and found that the cumulative effect of those impairments had a substantial and long-term adverse effect on day-to-day activities including short-term memory, use of a computer or iPad, concentration, dropping things, socialising, cooking and dressing. It rejected the suggestion that his short temper and intolerance were caused by the impairments, finding those traits arose from his personality.

The tribunal also found that the respondent had enough information to know, or at least ought reasonably to have known, that the claimant was disabled. The claimant had completed a health questionnaire on 23 March 2018 stating that he had a visual defect, a stroke history, heart disease, a skin condition and was a registered disabled person, but the respondent made no follow-up enquiries about the effect of those matters. Applying the statutory definition, the Goodwin v Patent Office approach and the relevant Guidance, the tribunal concluded that the claimant satisfied the section 6 test at the material time.

The direct discrimination claim failed because the tribunal found that the claimant was dismissed on 28 November 2018 because of the combined effect of three customer complaints, not because of disability. Those complaints were the March red-card incident, the September workmanship concerns and the 3 October complaint about his conduct on site. The tribunal accepted the dismissing officer's evidence and found no evidence that disability was a substantial or effective cause of the dismissal.

The indirect discrimination claim also failed. The claimant had alleged a PCP requiring operatives, on occasion, to complete two boiler installations within one day, but the tribunal found that no such requirement or practice existed. It found that operatives were given jobs for the day, could tell a line manager if they could not complete them, and the work would be reassigned or relisted. The tribunal held that the claimant's perception that he had to finish both jobs on 26 November 2018 was not what had been required.

The section 15 claim was dismissed for the same underlying reason. The tribunal found that the dismissal was not because of something arising in consequence of disability, but because of the customer complaints and the respondent's decision, after reflection, that it could no longer continue to employ the claimant. It found that the fact he did not complete both jobs on 26 November was due to delay in obtaining parts, not to his disability, and that the timing two days before dismissal was coincidental. The tribunal noted that the dismissal procedure was not perfect, and that the outcome might have been different in an unfair dismissal claim, but that was not the issue it had to decide.