Background:

The claimant was employed by the respondent as a Technical Officer. This involved dealing with service requests relating to private rental properties. The claimant returned from annual leave on 30th March 2020 which was at the start of the first lockdown. The claimant was asked if he would work at the crematorium which he agreed to on the basis that his existing contractual terms and conditions would continue to be met. The claimant raised no health issues at that time. The claimant worked one day at the crematorium and said he would not return. This was accepted by his line manager. He was asked to report to the office where other duties would be allocated. The claimant, in fact, worked from home from that point.

On 29th April 2020, the claimant was asked if he would inspect various areas of the city to see if they were open in breach of lockdown rules. The claimant rejected this citing his own health and safety. He also sent a GP letter outlining his respiratory symptoms and remained on sick leave until the Tribunal hearing. The claimant also brought a grievance citing work related stress.

The claimant originally brought age and sex discrimination claims. Through the case management process and four preliminary hearings a disability discrimination claim was identified relating to a failure to make reasonable adjustments and indirect discrimination.

The Tribunal dismissed the claims citing that the claimant was not a disabled person and even if he was the employer did not have requisite knowledge.

Outcome:

The claimant appealed to the EAT. He outlined that the Tribunal had erred as they failed to consider the significance of him being prescribed an inhaler. However, the EAT could find no evidence that he used the inhaler prior to April 2020. Also, the claimant argued that the respondent should be aware of his disability due to his sick leave in January 2020.  However, this was related to flu-like symptoms and that would have been insufficient. The claimant argued that the requirement that he work in the crematorium or the office during the lockdown period was such that he was indirectly discriminated against. This was rejected on the basis that he was not, as a matter of fact, required to work in the crematorium nor was he required to work in the office at that time. He was asked to work in the crematorium and agreed, and as soon as he no longer wished to work there, he could work from home following the Government advice.

Practical Guidance for Employers:

The cases relating to the lockdown in 2020 are reducing in number but some of them are now being seen at appeal level. When it comes to disability cases the importance of showing the disability is recognised within the confines of the legislation is clear. This was not shown through the evidence and meant that the claims were essentially nullified. The employer could not be expected to speculate upon the extent of illness from one period of sick leave and draw the conclusion that there is a disability or even that there may be a disability.

https://assets.publishing.service.gov.uk/media/66bdc6e8c32366481ca4910c/Mr_Trevor_Farley_v_Sunderland_City_Council_2024_EAT_115.pdf