Claimant v National Highways Limited

The tribunal unanimously found that giving the claimant a level 5 appraisal score in June 2022 was unfavourable treatment arising from her ADHD-related difficulty completing tasks in time. Mr Russell mistakenly believed reasonable adjustments were in place during the appraisal period. The tribunal found the reduction to Level 5 was not objectively justified and disproportionate.

By a majority (Mr Wharton and Mr Hough; EJ George dissenting), removing M2 Operations work on 4 May 2022 was objectively justified. The majority found urgent need to restore confidence with Area 4 colleagues after inaccuracies in draft communications, and the decision was reasonably necessary despite being disability-related.

By a majority (Mr Wharton and Mr Hough; EJ George dissenting), placing the claimant on a PIP on 4 May 2022 was objectively justified. The majority found objective evidence of performance issues, the PIP was the informal stage aimed at improvement, and most adjustments had been in place since February 2022. EJ George dissented, finding the decision premature and based partly on matters no reasonable employer would have included.

Removing Major Projects work (A31 Ringwood By-Pass) in January 2021 was unanimously found to be objectively justified. The predominant reason was to support the claimant's homeschooling during Covid, with disability-related performance concerns playing only a minor part.

Removing Smart Motorways work in January 2022 was unanimously found to be objectively justified. The tribunal accepted Ms Webber's evidence that the decision was made due to impending jury service and the need for close oversight of sensitive communications in the final weeks before opening, based on legitimate operational needs.

The tribunal unanimously found that Ms Webber's comments on 4 May 2022 ('I don't know whether I would have appointed you', 'Well I didn't hire you', 'I didn't sign off your probation either') constituted harassment related to disability. The comments were indirectly linked to disability through performance concerns arising from ADHD, and it was reasonable for the claimant to find them intimidating and humiliating in the context of being told she was being placed on a PIP.

By a majority (Mr Wharton and Mr Hough; EJ George dissenting), Ms Webber's comment on 4 May 2022 about the IT incident ('they didn't know that you have a disability and the behaviour that you displayed to them the way that you conducted yourself was not professional') did not meet the statutory test for harassment. The majority found it was explaining the IT colleagues' perception, not Ms Webber's judgment, and was a minor aspect in context. EJ George dissented, accepting the claimant was seriously offended by being called unprofessional for ADHD-related behaviour.