Mr N Dunn v J D Wetherspoon plc — 2024

The Tribunal held that the claimant's section 15 disability discrimination claim succeeded. It found that the respondent issued a final written warning, and later refused the appeal, because the claimant had failed to contact the pub during his absence in late July 2023. Although the respondent contended that the disciplinary action was about the failure to communicate rather than the absence itself, the Tribunal found that this failure to contact the pub formed part of the claimant's irrational behaviour during a mental health crisis and therefore arose in consequence of his disability.

The Tribunal found the respondent had constructive knowledge of disability by the summer of 2023. The claimant's May 2023 absence, the information given on his return to work, the July 2023 episode, and the matters raised during the disciplinary and grievance processes were sufficient red flags to require further enquiry. The respondent's justification defence failed because imposing and maintaining a final written warning was not a proportionate means of achieving the stated aims of employee welfare and efficient service; the Tribunal found that less discriminatory and more supportive measures were available and in fact were later used.

The reasonable adjustments claim failed. The Tribunal accepted that the variable shift pattern placed the claimant at a disadvantage, but found the respondent had made effective reasonable adjustments by altering his shifts and supporting a phased return. The main unresolved issue was the claimant's wish to work Mondays for stock training, but the Tribunal accepted the operational difficulties with changing rotas and concluded the respondent had done what was reasonably required.

The harassment claim succeeded only in part. The allegation concerning Mr Simmons' comments about the claimant's failure to notify the training team did not meet the statutory threshold. However, Mr South's 26 September 2023 email comment about 'signing off for two weeks' was found to be an unwelcome and snide remark related to the claimant's disability-related absence, and the Tribunal held that it reasonably had the effect of violating the claimant's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment. The victimisation claims were dismissed because the Tribunal found the relevant acts were caused by misunderstanding, disagreement, or the underlying disciplinary process rather than by the claimant's protected act.