Claimant v Salvation Army Housing Association Limited

The claimant withdrew her claim for unlawful deductions relating to sick pay, notice pay and holiday pay during the hearing after it was accepted that she had been paid correctly.

The tribunal found that although the claimant subjectively felt at risk, the conduct of Ms Mass did not present serious or imminent danger. The altercation was a workplace disagreement that, though distressing, did not create circumstances of danger justifying leaving the workplace under s.44 ERA.

The tribunal found the claimant had not left her shift in circumstances of danger as required under s.100 ERA. The principal reason for dismissal was the respondent's view that she was not a reliable employee during probation, not because she left her shift due to health and safety concerns.

The tribunal found no evidence of less favourable treatment because of disability. Where treatment occurred (e.g. references to managing emotions, treatment by Ms Mass), there was no evidence that a non-disabled person would have been treated differently, or that the treatment was because of disability.

Although the tribunal found a PCP existed (classifying leaving shift early without proper reporting as unauthorised absence), the claimant did not demonstrate she was unable to follow reporting procedures. On both occasions she was capable of reporting her absence and on 26 April did so. Even if made out, the PCP would have been justified.

The tribunal found the claimant's absences arose from her disability and that dismissal was unfavourable treatment because of something arising from disability. However, it was a proportionate means of achieving the legitimate aim of maintaining safe staffing levels and safeguarding vulnerable residents. The claimant was in probation and an extension was unlikely to resolve the uncertainty about future absences.

The tribunal found that the alleged PCPs either did not exist, did not place the claimant at substantial disadvantage, or were adjusted (e.g. the 7-day shift pattern was changed). In relation to not arranging occupational health before dismissal, case law establishes this is not a breach of the duty to make reasonable adjustments.

The tribunal found that although Ms Hoskins' language about managing emotions was related to disability and unwanted, it was not reasonable for it to have the effect of violating dignity or creating a humiliating environment. Ms Hoskins was using language carefully and sensitively. Ms Mass' mocking voice was offensive but not related to disability as she used it with others.

The tribunal found the claimant's email of 4 May 2023 did not amount to a protected act under s.27 Equality Act. Although she referred to bullying and mental health impact, the email did not allege a breach of the Equality Act 2010.