Private Medicine Intermediaries Ltd v Hodkinson & Anor (Disability Discrimination)

For discrimination arising from disability under section 15 of the Equality Act 2010, an Employment Tribunal must identify a real disadvantage and apply the statutory causal sequence. It must identify the consequence of disability, establish that it arose from disability, and then decide whether that matter caused the unfavourable treatment. A perceived loss of a more beneficial process is insufficient without an identified disadvantage.

For harassment, conduct occurring while an employee is ill is not necessarily related to disability. The Tribunal must find the required connection. In constructive dismissal, an employer may have genuine management concerns, but their unnecessary and insensitive communication to an employee known to be seriously unwell may undermine reasonable and proper cause and amount to a repudiatory breach of trust and confidence.

The employee had thyroid dysfunction and cardiac arrhythmia. Following her return from sickness absence, the employer did not conduct the formal reviews and risk assessment recommended by Occupational Health. She later began a further absence for anxiety and depression, after which the employer sent a letter raising six concerns.

The Liverpool Employment Tribunal held that the failure to review and assess her position was discrimination arising from disability, that the letter was disability-related harassment, and that the letter entitled her to resign constructively. The employer appealed.

The central issues were whether the statutory requirements for claims under sections 15 and 26 of the Equality Act 2010 had been established, and whether the letter was a repudiatory breach causing the resignation.

1. Appeal allowed in part. The findings of discrimination arising from disability and harassment were set aside. The employee’s claims under sections 15 and 26 of the Equality Act 2010 were dismissed. The appeal against constructive unfair dismissal was dismissed.

2. The section 15 finding could not stand. Although no comparator is required, unfavourable treatment requires an identified hurdle, difficulty or disadvantage. The Employment Tribunal had rejected the reasonable-adjustments claim and had not identified how the absence of a formal review or risk assessment created a substantive disadvantage, rather than a procedural shortfall. Its conclusion was therefore unexplained and inconsistent with the statutory test.

3. The Employment Tribunal also failed to apply the necessary causal sequence. The employee’s need for review and assessment arose from disability, but the Tribunal had found that the employer omitted those steps because it believed informal discussions and the Occupational Health report were sufficient. That finding was inconsistent with treating the omission as caused by something arising from disability.

4. The harassment finding was unsafe. The Tribunal had not found that the illness causing the employee’s second absence was connected to her thyroid dysfunction and cardiac arrhythmia. Its findings instead attributed that illness to her perception of management concerns which it found had properly been raised. Conduct in the circumstances of illness does not, without the required connection, establish unwanted conduct related to disability.

5. On an obiter issue, the Employment Tribunal had adequately considered the employee’s perception, the surrounding circumstances, and objective reasonableness when finding that the letter had the prohibited effect for section 26 purposes.

6. The constructive-dismissal finding was open to the Employment Tribunal. It was entitled to find that a letter raising non-serious, unnecessary or closed concerns to an employee known to be very ill undermined any reasonable and proper cause for the manner and timing of its communication. It was also entitled to find that the letter was a causative factor in the employee’s resignation. The employer’s appeal on that claim was dismissed.

7. Under Rule 34A of the Employment Appeal Tribunal Rules 1993, the employer recovered 50% of its appeal fees. The employee was ordered to pay £800.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the disability-discrimination and harassment findings, but dismissed its appeal against constructive unfair dismissal.
• Liverpool Employment Tribunal: Judgment sent to the parties on 5 March 2015. It upheld claims under sections 15 and 26 of the Equality Act 2010 and a claim of constructive unfair dismissal.