Members: A McFarlane R McPherson Mr J Carlyle v Mary’s Meals International — 2022

The claimant, Mr Carlyle, was employed by Mary’s Meals International as a senior IT Support Engineer from 30 September 2019 until 4 March 2021. The tribunal accepted that he was disabled by reason of a degenerative back condition and that the respondent knew of that disability. The claimant advanced a disability discrimination case and said that the events of 4 March 2021, together with earlier absence-management matters, amounted to a discriminatory basis for resignation. The tribunal also refused an application to amend the case so as to change a direct discrimination allegation about service-desk duties, applying Selkent Bus Co v Moore 1996 ICR 836.

The tribunal found that the relevant events were the return-to-work meeting on 4 March 2021 and the surrounding exchanges. It accepted Mr Neil’s evidence that he asked about the likelihood of recurrence of the claimant’s absence and said, in general terms, that absence had an impact on the team. It did not accept the claimant’s account that Mr Neil had asked when his next absence would be or had made a remark specifically directed at him. The tribunal found the question and comment to be reasonable enquiries in the context of absence management and return-to-work discussions.

Applying section 26 of the Equality Act 2010 and the burden of proof provisions in section 136, the tribunal held that there were no facts from which it could infer harassment. It accepted that the claimant experienced the discussion as upsetting, but concluded that, on the facts as found, the conduct did not have the requisite purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The harassment claim was therefore dismissed.

The claimant resigned immediately after the meeting and presented the resignation as a constructive unfair dismissal claim based on discrimination. The tribunal held that, because the alleged discriminatory conduct was not made out, there was no discriminatory fundamental breach capable of founding a constructive dismissal under section 39 of the Equality Act 2010. The claim was dismissed in full and no monetary award was made.