I Ashraf and P Finlay Mr A Behan v Represented by: Mr N Paterson - Solicitor Ethigen Limited — 2023

The claimant worked as a delivery driver and was diagnosed with chronic lymphocytic leukaemia in August 2022. The tribunal preferred his evidence that he told his line manager, Mr Starrs, about the diagnosis and was asked how the condition would affect his work. It also found that the respondent knew, or could reasonably have been expected to know, that the claimant was disabled, including because the claimant had told Mr Starrs about the diagnosis and because reasonable enquiries would have revealed the link between the claimant's stomach-related absences and his CLL.

The tribunal found that the claimant had been absent on two occasions because of stomach problems that were a consequence of his disability, and that those absences were taken into account when Mr Crawford decided to dismiss him for poor attendance on 15 June 2023. Dismissal was accepted to be unfavourable treatment, and the tribunal held that the claimant was treated unfavourably because of something arising in consequence of disability. Although it accepted that the respondent's aim of providing regular and effective service was legitimate, it concluded that dismissal was not a proportionate means of achieving that aim because no alternative to dismissal was considered and the discriminatory impact on the claimant was very considerable.

The section 26 harassment claim failed. The tribunal accepted that the August 2022 comment occurred, but held that the complaint was brought very considerably out of time, was not part of a continuing act, and there was no basis to extend time as just and equitable. It also held that the claimant's evidence did not show the required purpose or effect under section 26(1)(b). The allegation relating to 15 June 2023 also failed: the tribunal found that the claimant was dismissed, offered a taxi home, and chose to wait outside the office building, and it was not satisfied that any of that conduct was related to disability.

Remedy was not determined in this judgment. The tribunal directed that a separate remedy hearing would be fixed and asked the parties to provide calculations and evidence about past and future loss, mitigation, injury to feelings, and interest.