Claimant v Apple Retail UK Ltd

The tribunal found no evidence that the claimant was treated less favourably because of her sex. The incidents on 11 and 12 June 2019 involving Mr Kistner were not proven to be because of sex.

While Mr Kistner's conduct on 11 and 12 June 2019 was unwanted, the tribunal concluded there was insufficient evidence to establish that it was related to the claimant's sex as a protected characteristic.

The tribunal found no evidence from which they could infer a causal link between the protected acts (grievances and tribunal claims) and the alleged detrimental treatment. The decision-maker Mr Dinnage had little personal interest in the tribunal claim relating to events at another store.

The dismissal was unfavourable treatment because of sickness absence arising from the claimant's disability (anxiety and depression). The tribunal found dismissal was not a proportionate means of achieving the legitimate aim because less severe alternatives existed, including allowing a phased return, obtaining up-to-date medical evidence, and setting attendance targets.

The tribunal found the respondent failed to make a reasonable adjustment by not offering a phased return to work, which would have helped reduce sickness absence and the risk of dismissal. Other proposed adjustments (redeployment, moving Mr Kistner, mediation, discounting absences, setting targets) were found not to be reasonable adjustments or would not have alleviated the substantial disadvantage.

The dismissal was unfair because the respondent did not carry out a reasonable investigation (failing to obtain up-to-date medical evidence or contact the claimant's treating physician as permitted by policy) and could reasonably have been expected to wait longer, particularly given the claimant stated she was fit to return, medical evidence by appeal stage confirmed fitness to return, limited business impact, and long service.