Member H Boyd Tribunal Member P O’Donnell Mr P O’Connor v HM Revenue and Customs — 2019

The claimant brought complaints of unfair dismissal, direct discrimination because of religion or belief, direct discrimination because of perceived disability, and harassment. The respondent accepted dismissal for capability but denied unfairness and denied discrimination or harassment. The tribunal preferred the evidence of the respondent's witnesses where it conflicted with the claimant's evidence, finding them credible and reliable while accepting that the claimant was describing what he believed had happened.

On religion or belief discrimination, the tribunal considered each alleged act, including being told to "tone it down", the Buddha image at a workplace event, discussions about abortion, notes of calls, the 15 September incident, and the meetings on 5 May. It found the claimant had not shown less favourable treatment compared with an actual or hypothetical comparator. The tribunal also found that the respondent's actions were motivated by concern about the claimant's welfare and presentation rather than the religious content of what he said.

On perceived disability, the tribunal found the respondent did perceive the claimant to be disabled, having regard to the medical evidence and occupational health material. However, it rejected the allegations that the respondent used fear and intimidation through the trade union or barred the claimant from the office. It found the steps taken after the 15 September incident were related to the respondent's duty of care and workplace management, not perceived disability.

The harassment claim was dismissed because, although the claimant perceived the conduct as unwanted, the tribunal found it was not reasonable for him to regard the conduct as violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The tribunal found the respondent's actions arose from attendance management, welfare concerns and safety concerns.

For unfair dismissal, the tribunal found the respondent dismissed the claimant for capability because he was not fit for work and there was no indication of a return within a reasonable timescale. The respondent had kept in contact, obtained occupational health advice, considered the medical position and met the claimant before dismissal. The tribunal held that dismissal was fair and within the band of reasonable responses.