P McColl and S Keir Ms K Mackay v NTT Data Solutions Ltd — 2023

The claimant, Ms K Mackay, brought disability discrimination claims against NTT Data Solutions Ltd. The tribunal accepted that she had Hereditary Spastic Paraplegia (HSP), which was a disability, and accepted that the respondent knew of HSP from October 2018. It rejected the case that HSP and anxiety/depression formed a single disability for the purposes of the claim, and held that the respondent did not know about any mental health condition until June 2020, when the claimant sent a 21-page document.

The tribunal held that the 17 June 2020 informal meeting was admissible. It found that saying a meeting was 'off the record' and 'informal' was not enough, by itself, to engage without prejudice privilege. It also held that points 6 to 17 were time-barred under s.123 Equality Act 2010, applying the Hendricks and Aziz approach to alleged continuing acts.

On the facts, the tribunal preferred the respondent's evidence on a number of contested issues. It found that the claimant worked a large number of additional hours, but that the respondent did not require overtime of the kind she alleged; it found that the retail/Solution Architect changes were intended to reduce management burden and use her technical strengths; and it accepted that practical steps had been taken, including flexible starts, lighting changes, coloured glasses, reduced targets and phased return arrangements.

The indirect discrimination claim failed because the tribunal found no overtime PCP and no group disadvantage. The reasonable-adjustments claims failed because the alleged PCPs were not proved or did not put the claimant at a substantial disadvantage, including the work-targets point, the absence-policy point and the return-to-work point. On the role-change point, the tribunal found that the respondent had taken the claimant's health into account and that no substantial disadvantage arose from the absence of medical advice before the change.

The section 15 claims also failed. For the 27 May 2020 letter, the tribunal found that it was a frank concern letter, not a disciplinary, and that the 'managed out' wording was not unfavourable treatment in context. For the complaint-investigation point, it held that Ms McLaughlin carried out a senior, neutral investigation and that the claimant had not shown unfavourable treatment or a causal link to something arising from disability.

The harassment allegations under s.26 all failed. Some allegations were found not to have occurred, including the customer-notification point, the eye-rolling allegation, the alleged notice-period comment at the informal meeting and the breaks email. For the other complaints, the tribunal either found no proscribed effect or no link to disability, applying Pemberton v Inwood and Richmond Pharmacology v Dhaliwal. It said the claimant was hypersensitive and unreasonably prone to take offence, particularly over enquiries about her health. The claim was dismissed in its entirety and no award was made.