Claimant v MHS Homes Ltd

Tribunal found no evidence that a hypothetical comparator in same circumstances (off work since April 2022, unfit to return, not disabled) would have been treated differently. Dismissal was because of ongoing absence and inability to return, not because of disability.

Tribunal found unfavourable treatment (performance reviews, withholding bonus, failing to implement OH recommendations, failing to refer to specialist, dismissal) arose from things consequent on disability (inability to manage workload, decreased concentration, slower pace, seizures). Succeeded on all allegations except delay in approving working from home. No evidence of justification defence.

Tribunal found multiple PCPs (capability procedures, workload requirements, requirement to work under particular team leader, hot-desking system, bonus policy) put claimant at substantial disadvantage. Respondent failed to make reasonable adjustments: altering workload, changing team leader, not instigating capability procedures without first implementing OH recommendations, implementing OH recommendations (seating, training, risk assessment), tailoring training to claimant's needs. These should have been implemented from June 2019 OH report onwards.

Tribunal found four incidents of harassment related to disability by team leader Lisa Gilbert: (1) name-calling ('Regan' from The Exorcist) July-September 2020, (2) discussing claimant's performance on loudspeaker in open office September 2021, (3) treating claimant differently when she struggled with tasks September 2019, (4) threatening to give claimant's home address to client if task not completed on time September 2021. Tribunal found this was unwanted conduct related to disability which had the effect of creating a hostile/degrading environment, taking into account claimant's perception and circumstances.

Tribunal found reason for dismissal was capability (ill-health). Respondent acted reasonably: fully investigated, consulted with claimant and family, obtained OH advice, considered medical retirement, offered various participation options at hearing. Claimant had been absent since April 2022 with no prospect of return and had stated she would not return. Dismissal was within range of reasonable responses. Not rendered unfair despite discrimination finding as principal reason was inability to return to work.

Tribunal found claimant received what was properly payable under her contract. Bonus scheme was discretionary based on performance ratings. Claimant was rated '2' and therefore not entitled to bonus under contractual scheme. Two-year backstop also applied to some years claimed. Tribunal noted this may be a remedy issue for discrimination claims but not an unauthorised deduction.