Factual and Procedural Background
The Plaintiff was employed by the Defendant from March 2004 and held the role of application support analyst starting in August 2008. The Plaintiff was diagnosed with ulcerative colitis, a disability under the Equality Act 2010, and also suffered from sleep apnoea and depression, though only ulcerative colitis was recognized as a disability for the purposes of this case. The Defendant was aware of the Plaintiff’s disability from 2008 onwards.
The Plaintiff experienced significant sickness absence related to both disability and non-disability reasons, with a notably high absence record. Various occupational health reports recommended reasonable adjustments, including working from home during flare-ups and proximity to toilet facilities. The Defendant made some adjustments but did not fully accommodate all requests.
The Plaintiff’s role was affected by organisational changes, including office relocations and redundancy consultations. The Plaintiff was served notice of redundancy with a termination date in September 2014, but this was extended until January 2015 due to union agreements. The Plaintiff was offered alternative roles, some of which he declined or did not apply for. A grievance was raised by the Plaintiff alleging discrimination and failure to make reasonable adjustments, which was not upheld by the Defendant.
The Plaintiff brought claims alleging direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, and victimisation under the Equality Act 2010. The claims were heard over multiple days in January 2018 before Employment Judge King and a tribunal panel.
Legal Issues Presented
- Whether the Plaintiff was subjected to direct disability discrimination as defined under section 13 of the Equality Act 2010.
- Whether the Plaintiff was discriminated against arising from disability under section 15 of the Equality Act 2010.
- Whether the Defendant failed to make reasonable adjustments as required by sections 20 and 21 of the Equality Act 2010.
- Whether the Plaintiff was victimised under section 27 of the Equality Act 2010 for having performed protected acts.
- Whether the claims were presented within the statutory time limits and if not, whether it was just and equitable to extend time under section 123A of the Equality Act 2010.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL |
Principles related to discrimination claims and burden of proof. |
Referred to in submissions; no specific application detailed. |
| London Probation Board v Kirkpatrick [2005] IRLR 443 |
Concept of "vanishing dismissal" and reinstatement nullifying dismissal. |
The Tribunal considered reinstatement extinguished the Plaintiff’s dismissal. |
| Chief Constable of West Yorkshire Police v Homer [2012] ICR 704 |
Proportionality test in discrimination arising from disability claims. |
Used to assess whether the Defendant’s bonus scheme was a proportionate means of achieving a legitimate aim. |
| O’Hanlon v Commissioners for Revenue & Customs [2007] IRLR 404 |
Reasonableness of adjustments regarding sick pay arrangements. |
Referenced to reject claim regarding sick pay as a reasonable adjustment. |
| British Coal Corporation v Keeble [1997] IRLR 336 |
Factors to consider in deciding whether to extend time for claims. |
Guided the Tribunal’s assessment of whether it was just and equitable to extend time. |
| Higgins v Secretary of State for Work and Pensions (Job Centre Plus) [2014] ICR 341 |
Requirement that reasonable adjustments must avoid substantial disadvantage. |
Applied to conclude that adjustment sought would not have avoided disadvantage. |
| HM Prison Service v Johnson [2007] IRLR 951 EAT |
Duty to make reasonable adjustments and consequences of failure. |
Referenced to support finding that adjustment duty fell away as Plaintiff was too unwell to work. |
| Noor v Foreign and Commonwealth Office [2011] ICR 695 |
Effectiveness of reasonable adjustments need not be complete. |
Considered when assessing the impact of adjustments made from February 2015. |
Court's Reasoning and Analysis
The Tribunal carefully examined the allegations of discrimination, failure to make reasonable adjustments, and victimisation under the Equality Act 2010. It considered the Plaintiff’s medical condition, sickness absence records, and the Defendant’s responses including occupational health reports and adjustments made.
Regarding direct disability discrimination, the Tribunal found no dismissal on 24 September 2014 as the Plaintiff was effectively reinstated when his notice period was extended. The Plaintiff was offered permanent roles, but he declined or did not apply for them. The failure to appoint him to a senior role was attributed to the successful candidate’s superior qualifications, not disability or attendance. The Tribunal also found that the Defendant failed to properly handle the Plaintiff’s grievance related to the senior role application, but this was due to procedural failings and not discrimination.
On discrimination arising from disability, the Tribunal accepted that the Plaintiff was denied full bonuses in certain years due to failure to discount disability-related absences but concluded this was due to absence generally rather than disability specifically. The Defendant’s bonus scheme was found not to be a proportionate means of achieving a legitimate aim as it did not reasonably exclude disability-related absences from deductions.
In relation to reasonable adjustments, the Tribunal identified only one relevant provision, criterion or practice (PCP): requiring the Plaintiff to work at a fixed location. The Plaintiff was permitted to work from home during flare-ups from February 2015, but his attendance did not improve, undermining the claim of substantial disadvantage. Other alleged PCPs were rejected as not established or not applicable.
The Tribunal found the Plaintiff performed protected acts by raising grievances, but the alleged victimisation was not caused by these acts. Failures to address grievances or appoint to roles were attributed to other reasons such as procedural errors or qualifications.
Regarding time limits, the Tribunal found most claims out of time. The only successful claim related to disability discrimination in bonus payments for 2010/11 and 2011/12, but this claim was also out of time and the Plaintiff failed to show it was just and equitable to extend time.
Holding and Implications
The Tribunal dismissed all claims for direct discrimination, discrimination arising from disability, failure to make reasonable adjustments, and victimisation.
The only claim found in favour of the Plaintiff concerned denial of full bonuses due to failure to discount disability-related absences for the financial years 2010/11 and 2011/12. However, this claim was out of time, and the Tribunal declined to extend time for bringing it.
The decision results in no liability for the Defendant on all claims. No new legal precedents were established, and the case underscores the importance of timely claim submission and clear procedural handling of grievances in disability discrimination cases.