Worsley v Commissioners for HM Revenue & Customs 2400096/2016
For the original full judgment click here
For the remedy judgment click here
 

The Claimant was employed as an HMRC Administrative Officer from 1970 until her employment was terminated in April 2015. She had been on sick leave since December 2014 with depression resulting from stress at work. She complained of being bullied by her line manager since September 2014 and brought a claim of unfair dismissal and unfavourable treatment arising in consequence of disability, and a failure to make reasonable adjustments.

[para 194] The tribunal found that the Claimant was a “very vulnerable individual and felt suicidal” and was not in a fit state to be receiving letters from work regarding her absence and had reached breaking point.
[para 260-1] The tribunal also found that as an employer of over 1,000 employees with a number of suitable alternative teams there was “no cogent explanation…why it was not possible to move the claimant to another team in the same building with another manager” as she had requested.

[para 268] The tribunal found that no assessment was undertaken regarding how the claimant’s absence could be supported and tolerated despite company policy that this should be done. The tribunal found this contrary to the consideration set out in BS v Dundee City Council [2014] IRLR 131 of whether an employer can be expected to wait any longer for an employee to recover from illness. The Claimant’s absence at the time of dismissal was 2.5 months when up to a one year absence was set out as tolerable in the Respondent’s policy. [para 269]

The tribunal found that the requirement to work for a particular line manager was a PCP that placed her at a substantial disadvantage. The tribunal did not rely on classifying the line manager’s behaviour as “bullying” but stated that a person without the Claimant’s disability would have been able to “shrug off [her] brisk and sharp manner…The claimant was a vulnerable individual with a pre-existing history of depression and the way she related to her manager was different to a person who was not disabled.” Her claim of being moved as reasonable adjustment therefore succeeded

The tribunal found that the Claimant would have continued her employment until retirement if the adjustment had been made. It did not therefore allow a Polkey adjustment and also ordered a 25% uplift for failure to follow procedure. The remedy judgment published on 6^th October awarded a total of £243,957.28. This included £20,000 for injury to feelings, £25,000 for personal injury and £76,000 loss of earnings.

FINCH V CLEGG, GIFFORD & CO. 3212890/2020 
For the full judgment click HERE

A 66 year old insurance company employee was found to have been subject to age and disability discrimination  and constructively dismissed.

Comments made by the company MD asking him if he was planning on taking an afternoon nap that day were held to be “crass” by the tribunal and discriminatory given the knowledge of his disability and the effect it had on him.

The tribunal also found that comments stating that the Claimant had been around as long as Pontius Pilate were discriminatory in terms of his age.

The comments were made as “jokes” during discussions around a termination settlement after the Claimant had concerns about returning to work after COVID and having to use public transport.

The claimant told the tribunal he found the comments “humiliating and offensive.”

The tribunal found that due to the longevity of the MD’s career she lacked an understanding of equality and diversity and was thoughtless in how she expressed herself.

Final settlement is to be decided at a remedies hearing in November.

Bathgate v Technip UK Ltd and ors [2022] EAT 155
For the full judgment click HERE

The EAT has found that a settlement agreement cannot compromise a discrimination claim that has not yet arisen. After accepting voluntary redundancy the Claimant reached a settlement agreement following advice from his solicitor. The agreement included a clause preventing future claims against the Respondent in exchange for an “Additional Payment” for people under the age of 61. The Claimant was over 61 and refused the payment after signing the agreement and claimed age discrimination. Lord Summers held the Claimant had “signed away his right to sue for age discrimination before he knew whether he had a claim or not…The inclusion of a claim in an agreement defined merely by reference to its legal character or section number does not satisfy the language of the Equality Act.”

It was held that reference to “the particular complaint” within the act, suggested that Parliament anticipated the existence of an actual complaint and was not apt to describe a potential future complaint.

The settlement agreement did not therefore prevent a future claim being instigated.