Mrs E Ferguson v Represented by:15 Mr R Russell Solicitor Braid Ltd t/a Burns Bar and 1 other — 2019

Mrs E Ferguson worked for the first respondent from 4 January 2016. After a cancer diagnosis in July 2016 and treatment, she returned on reduced hours and later produced a consultant's report dated 20 September 2018 confirming significant fatigue and difficulty working in the evenings. The tribunal accepted that the first respondent knew of her disability, that her shift pattern was changed in July 2018 to include a back shift ending at 1.30am without consultation, and that her repeated requests to return to two day shifts were refused. She then lodged a written grievance on 26 October 2018 complaining of disability discrimination and seeking reasonable adjustments, but it was not dealt with.

The tribunal held that the claimant was unfairly dismissed under section 94 of the Employment Rights Act 1996 and, in its reasons, said there had been no consultation whatsoever. It also held that she was treated unfavourably because of something arising in consequence of her disability within section 15 of the Equality Act 2010, and that the requirement to work day and night shifts, including the 1.30am back shift, placed her at a substantial disadvantage so that the refusal to restore day shifts breached sections 20 and 21. The tribunal further upheld victimisation, finding that the grievance of 26 October 2018 was a protected act and that the dismissal followed in circumstances giving rise to a strong inference of retaliatory treatment.

On the transfer issues, the tribunal found a relevant transfer under Regulation 3 of TUPE 2006 when the Burns Bar business passed to the second respondent on 10 March 2019. It found that the same business continued without interruption, using the same premises, lease, stock, fixtures and staff, save for the claimant, and held that the dismissal was automatically unfair under the Regulations and that all liabilities transferred under Regulation 4. The tribunal also found a complete failure to inform and consult under Regulation 13 and awarded 13 weeks' pay, £1,482, under Regulation 15, jointly and severally. In remedy, no basic award was made because the claimant had already been paid a statutory redundancy payment. The tribunal awarded a compensatory award of £2,338 for unfair dismissal, made up of £456 past loss, £1,482 future loss and £400 for loss of statutory rights, and awarded £8,600 for injury to feelings at the top of the lower Vento band plus £143.33 interest. The total of the awards was £12,563.33, with the compensation and discrimination award payable by the second respondent following the transfer.