Claimant v WM Morrison Supermarkets Limited

The tribunal found the principal reason for dismissal was 'some other substantial reason' (high level of absences at 57.63% exceeding the 3% trigger). The respondent acted reasonably and within the band of reasonable responses. The respondent followed the Attendance Management Policy over a lengthy period, issued multiple warnings, made adjustments requested by the claimant, and at dismissal there was no realistic prospect of substantial improvement in attendance. Even the failure to consider disability status did not render the dismissal unfair given all adjustments offered.

The tribunal found the dismissal was unfavourable treatment because of something arising in consequence of disability (sickness absence and need to take medication). However, the respondent showed the treatment was a proportionate means of achieving a legitimate aim: the AMP was in place for business efficiency and reliable attendance. Given the claimant's 57.63% absence rate, the respondent's conclusion to dismiss was appropriate and reasonably necessary. The respondent had already applied a gamut of measures short of dismissal.

Direct disability discrimination was listed in the issues but does not appear to have been pursued or determined by the tribunal in the substantive findings.

The tribunal found the PCP (the 3% absence trigger requiring a certain level of attendance) did put disabled people and the claimant at a disadvantage compared with non-disabled employees. However, the respondent showed the PCP was a proportionate means of achieving a legitimate aim: the AMP was reasonably necessary for business purposes, and there was a discretionary element in its application which mitigated a mechanistic approach.

The tribunal found that the respondent made numerous adjustments including no heavy lifting, no fast walking, allowing breaks for medication (one hour lunch and two 15-minute breaks), not requiring overtime, suggesting department change and shift-swapping. The PCP relied upon by the claimant was inconsistent with the evidence: the claimant was given one and a half hours break split appropriately, not one hour. The adjustments made were reasonable and appropriate.

The claim relating to an incident on or about 1 June 2023 (Richard/Joanna saying the claimant should not take a pill in front of customers) was struck out as out of time. The tribunal refused to extend time on a just and equitable basis due to considerable delay, no explanation from the claimant, and balance of prejudice favouring the respondent.

The respondent admitted failure to pay notice pay of £1,324.13. The claimant accepted the calculation. The respondent stated the money had not been paid as the claimant had not provided banking details. The tribunal did not formally resolve this, but the respondent's admission stands.