Miss S McDaid 10 v TDN by Michal Ltd and 1 other — 2023

The claimant brought disability discrimination claims under sections 15, 26, 27, 20 and 21 of the Equality Act 2010, an automatic unfair dismissal claim under section 104 of the Employment Rights Act 1996, and an unlawful deduction of wages claim. The tribunal accepted that the claimant had ADHD and was divided on whether she met the section 6 Equality Act definition of disability: the two lay members found that she did, while the Employment Judge was not persuaded. The tribunal was unanimous, however, that none of the claims succeeded.

On the discrimination claims, the tribunal preferred the evidence of Mr Tereszczenko and Mr Reid to that of the claimant. It found that the incidents relied on, including comments about prosecco, stock control, and a staff member becoming upset, were ordinary workplace matters and were not related to disability. The tribunal also rejected the claimant's account that the respondent's conduct created a hostile environment or that her grievance was linked to any less favourable treatment. It found that the grievance letter of 9 October 2022 was a protected act, but the dismissal was not caused by it.

On reasonable adjustments, the tribunal found that no relevant provision, criterion or practice was identified which placed the claimant at a particular disadvantage. It accepted that the respondent had already allowed some flexibility, including not pressing lateness and not requiring late shifts, but did not accept that the claimant was entitled to a home-based social media role or other changes of the sort she proposed. The tribunal found that such a role would not have been a reasonable adjustment for a small restaurant business in financial difficulty.

The tribunal accepted that the dismissal on 15 October 2022 was for the reasons given by Mr Tereszczenko, namely financial pressures and the claimant's perceived attitude towards him, and not because of any protected act or disability. On the wages issue, it found that when the restaurant closed for two of the days in question the parties agreed that the claimant would work an additional day the following week, which she did and was paid for, so no guaranteed payment arose. The tribunal also found that any holiday pay issue was resolved on the claimant's final payslip. All claims were dismissed and no award was made.