Claimant v Secretary of State for Justice

Claim dismissed as out of time. Effective date of termination was 24 November 2021, making the time limit (extended by ACAS EC) expire on 23 February 2022. Claim filed 24 March 2022. Tribunal found it was reasonably practicable for claimant to have issued claim by 17 March 2022, noting claimant's improving mental health by end of February 2022, his ability to engage in administrative tasks including appeal and job applications, and that solicitor delay is attributable to claimant under Dedman principle.

Tribunal found that dismissal and failure to uphold appeal were not because of disability. Using hypothetical comparator with same absence record for non-disability reason, tribunal concluded Ms Price dismissed claimant due to his length of absence and inability to indicate return date (though tribunal found her calculation of absence days was flawed as she ignored sick leave excusal). Tribunal found anyone with similar absence record who had brought grievances against Ms Price would have been treated the same way. Mr Cartwright followed Ms Price's flawed logic but tribunal concluded his actions were inadequate rather than discriminatory on grounds of disability.

Claim succeeded in part. Tribunal found discrimination arising from disability in: (6.1.1) reducing phased return from 12 to 4 weeks without agreement, done because of claimant's stated need for 12 week phased return; (6.1.4) Ms Price telling claimant to work from amended risk assessment or go off sick, because she was aware claimant needed long phased return; (6.1.5) subjecting claimant to capability procedure due to his sickness absence; (6.1.6) dismissal, which was linked to sickness absence and need for longer phased return; (6.1.7) failure to uphold appeal, as Mr Cartwright followed Ms Price's discriminatory logic. Claims under 6.1.2 (refusal of self-referral to OH) and 6.1.3 (refusal to refer to OH) failed as tribunal found no evidence discrimination was reason. Claim 6.1.8 (not upholding grievances) failed as tribunal found decisions made because claimant had been dismissed, not because of disability. None of the successful claims were justified as proportionate means of achieving legitimate aim.

Tribunal found two PCPs: (1) taking longer than 28 days to complete disciplinary investigation; (2) requirement to attend work. Both placed claimant at substantial disadvantage due to his anxiety, depression and PTSD. Tribunal found respondent failed to make reasonable adjustments by: (a) not speeding up disciplinary process during Covid pandemic when claimant had admitted allegations and his anxiety was exacerbated by delay—tribunal found no justification for lengthy delays particularly given lack of evidence of chasing transcripts or keeping claimant informed; (b) not allowing claimant's desired 12 week phased return when it was working successfully and claimant was improving—respondent stopped making an adjustment that was clearly alleviating the disadvantage by changing parameters on 28 October 2021 based on out-of-date OH report rather than contemporaneous evidence from claimant and Mr Evans.

Allegations 9.2.1 to 9.2.7 dismissed as out of time for same reasons as unfair dismissal claim. Allegations 9.2.8 (failure to uphold appeal against dismissal) and 9.2.9 (failure to uphold grievances) occurred on 22 February 2022 and were in time. However, both allegations failed on merits. Tribunal found insufficient evidence that claimant's trade union activity was a reason for dismissal appeal outcome or grievance appeal outcomes. Tribunal concluded reasons for dismissal were absence and inability to return to work as respondent demanded. In grievance appeals, tribunal found Ms Price's self-interest was paramount reason, not trade union activity.