Member: Mrs E A Farrell Tribunal Member: Mr A K Smith Mrs L Murdoch v – Solicitor Real Care Agency and 1 other — 2022

The tribunal held that the claimant's depression met the definition of disability under section 6 Equality Act 2010. It found that the condition had a substantial and long-term adverse effect on day-to-day activities, including washing, eating, leaving the house and social activity. The tribunal did not accept that the claimant had shown before employment that Mr Gill knew she had depression or a stammer, but it accepted that by the time of the first fit note and later correspondence he knew she may have mental health issues.

The section 13 direct discrimination claim was dismissed. The allegations covered non-payment of SSP, the invitation to a probationary review and dismissal meetings, extension of the probationary period, the 19 November 2020 letter, and non-payment of holiday pay. The tribunal found that the respondents' reasons were the claimant's absence record, failure to follow absence reporting procedures, probationary status, and the need to manage staffing in a care setting. It accepted that SSP was not paid because later fit notes were not received and Mr Gill was waiting for HMRC's view, and that holiday pay was dealt with on the same basis. It was not satisfied that the claimant had shown less favourable treatment because of disability.

The section 15 claim also failed. The claimant relied on her failure to attend the probationary review meeting, saying that a stammer arising in periods of depression prevented attendance. The tribunal accepted that the respondents knew she may have mental health issues, but it found no basis for concluding that they knew she had a stammer or that it caused the non-attendance. The claimant's email of 28 November 2020 gave other reasons for not attending and did not rely on a stammer. The tribunal held that the claim was not made out.

The section 20 reasonable-adjustments claim was dismissed because the pleaded PCP was not established. The tribunal found that the alleged practice of dealing only with the claimant in meetings and by telephone lacked the repetition needed to amount to a PCP, and the only proved refusal to speak to Mrs D Murdoch was a one-off decision made on data protection and authority grounds. It also found that the respondents did not have the requisite knowledge of any relevant disadvantage.

The section 26 harassment claim was dismissed. The tribunal allowed the dismissal allegation to be considered despite the time-bar point under section 123 Equality Act 2010, applying the balance-of-prejudice approach in Robertson v Bexley CC. On the merits, it held that the failure to pay SSP and holiday pay were not conduct related to disability, and that dismissal, although unwanted and upsetting to the claimant, was objectively explained by her absence history, non-engagement with the absence procedure, extended probationary status and the staffing pressures faced by the respondents. The tribunal treated dismissal as an incident rather than an environment, referring to General Municipal and Boilermakers Union v Henderson.