Neil Duke v B & M Retail Ltd

A requirement that employees attend work during a pandemic may place a disabled employee with a lung condition at a particular disadvantage. The threshold for disadvantage under section 19 of the Equality Act 2010 is low.

Objective justification requires a structured and evidence-based assessment. The tribunal must weigh the employer’s real needs against the discriminatory impact, rather than rely on general staffing concerns or unsupported financial assertions.

Once substantial disadvantage is established, the employer must show that no further reasonable adjustment was required. An adjustment permitting shielding on statutory sick pay does not itself end the inquiry where the employee remains disadvantaged by substantial loss of earnings.

The claimant, a store manager disabled by lung conditions, was clinically extremely vulnerable to COVID-19. During the pandemic, he sought furlough or work in a lower-risk store rather than attendance at his base store. The respondent ultimately offered absence on statutory sick pay to employees who wished to shield.

The Manchester Employment Tribunal dismissed claims for indirect disability discrimination, failure to make reasonable adjustments, unfair dismissal, wrongful dismissal and victimisation. It found, among other matters, that attendance did not place the claimant at a particular disadvantage during the first period, that the respondent’s policy was justified during the second period, and that statutory sick pay was a reasonable adjustment.

The claimant was later dismissed for alleged COVID-safety misconduct. The central issues were whether the Tribunal had correctly addressed disadvantage, justification, reasonable adjustments, the fairness of dismissal, and wrongful dismissal.

1. Appeal allowed. The Employment Tribunal’s conclusions on indirect disability discrimination, reasonable adjustments, unfair dismissal and wrongful dismissal could not stand. The claims were remitted to a differently constituted tribunal.

2. The Tribunal erred in finding that the claimant was not personally disadvantaged by the requirement to attend work between July and December 2020. It had found group disadvantage arising from the risk of severe illness, but overlooked the low threshold for particular disadvantage and material evidence. That included shielding advice, the GP’s recommendation of furlough or low-prevalence work, the claimant’s requests for furlough, and the Tribunal’s inconsistent finding of substantial disadvantage for reasonable-adjustments purposes.

3. The Tribunal’s justification analysis was unsafe. Under section 19 of the Equality Act 2010, the respondent had to establish that its measure was a proportionate means of achieving a legitimate aim. The Tribunal did not conduct the required balancing exercise between the respondent’s asserted staffing needs and the discriminatory impact on a clinically extremely vulnerable employee. It relied on generalisations and unsupported assumptions about financial cost, while failing to consider the claimant’s significant loss of pay if restricted to statutory sick pay.

4. Having found PCPs and substantial disadvantage, the Tribunal had to assess whether further reasonable steps should have been taken. Its conclusion that statutory sick pay removed the disadvantage was perverse: the claimant remained substantially disadvantaged by the loss of earnings. It also failed to make an individual assessment of the cost of furloughing this claimant, and wrongly treated one adjustment as necessarily sufficient.

5. The Tribunal failed to give reasons on material issues bearing on the reasonableness of dismissal, namely prior good service, COVID-safety training and lesser sanctions. It also failed altogether to determine wrongful dismissal, including whether the alleged conduct amounted to a repudiatory breach or gross misconduct.

• Employment Appeal Tribunal: appeal allowed in [2025] EAT 195; claims for indirect disability discrimination, reasonable adjustments, unfair dismissal and wrongful dismissal remitted to a differently constituted tribunal.
• Manchester Employment Tribunal: reasons promulgated on 25 August 2023. The Tribunal dismissed the claimant’s discrimination, dismissal and victimisation claims.