Claimant v Spar UK Ltd

The tribunal found that the Respondent's insistence on a decision by 10 February before the Claimant's scheduled surgery on 13 February was influenced by knowledge of her anticipated six-week absence. The Respondent placed the Claimant in a pool of one, failed to hold meaningful consultation with union representation, and refused to delay the process. The burden of proof shifted and the Respondent failed to provide an adequate explanation showing disability played no part.

The tribunal found that the Respondent dismissed the Claimant with immediate effect (payment in lieu of notice) on 10 February 2023 because of something arising in consequence of her disability, namely her need for surgery on 13 February and six weeks' recovery. The Respondent expedited the redundancy, refused union representation, and insisted on a decision before her surgery. The section 15(1)(b) justification defence failed because the Respondent could have given notice or used garden leave, thereby preserving her BUPA cover for the surgery.

The tribunal found that while the Respondent had a PCP of having a PILON provision and cancelling health benefits on termination, it was a proportionate means of achieving a legitimate aim. The existence of the contractual right to terminate with no notice (just PILON) meaning that benefits would cease with no notice, was not indirect discrimination. The Respondent did not have a PCP of cancelling benefits before the effective termination date.

The tribunal found the Respondent applied a PCP of being entitled to terminate employment and health benefits with immediate effect by exercising PILON. This put the Claimant at substantial disadvantage because she needed surgery on 13 February and would lose BUPA cover. A reasonable adjustment would have been to dismiss with notice (or use garden leave), preserving her BUPA cover. The Respondent knew of her surgery and that dismissing without notice would end her cover. Dismissing with notice would not have delayed the restructure and both Ms Dover and Mr Johnson said it could have been done if asked.

The tribunal found the reason for dismissal was redundancy, a potentially fair reason. However, the dismissal was procedurally unfair. The Respondent failed to consult at a formative stage, refused to allow union representation at the consultation meeting on 8 February despite policy allowing it, held inadequate consultation meetings, and insisted on a final decision by 10 February to coincide with the Claimant's impending surgery absence. The Respondent placed the Claimant in a pool of one without adequate justification and failed to give sufficient time to consider the alternative Campaign Manager role.

The Claimant was entitled to expenses for travel to work locations other than her normal place of work based on past practice and the contract interpretation. The Respondent did not prove it successfully varied the expenses clause to require deduction of notional home-to-office travel costs. The Respondent breached contract by refusing to pay expenses in full, though this caused no loss to the Claimant.