B and M Retail Ltd

Case Summary

The Claimant was disabled by virtue of a lung condition. He had received letters from Public Health England that he was deemed clinically extremely vulnerable to COVID as a result of his disability. He was required by the Respondent to attend work during the pandemic. The Claimant requested to be absent from work on furlough as a reasonable adjustment. This was refused by the Respondent, but the Claimant was given the option of remaining off work shielding on statutory sick pay. The Employment Tribunal ("the ET") dismissed his claims for indirect disability discrimination, failure to make reasonable adjustments, unfair dismissal and victimisation.

The tribunal's initial decision was overturned on appeal because it made legal errors in its analysis of indirect disability discrimination (finding no particular disadvantage and misapplying objective justification), failed to properly consider reasonable adjustments, and made errors in its unfair dismissal assessment, necessitating remission for reconsideration by a different tribunal.

• •disability discrimination – sections 19 and 20 Equality Act 2010
• •unfair dismissal
• •wrongful dismissal

Judgment approved by the court for handing down Duke v B & M Retail Ltd © EAT 2025 Page 1 [2025] EAT 195 Neutral Citation Number: [2025] EAT 195 Case No: EA-2023-001072-DXA EMPLOYMENT APPEAL TRIBUNAL Rolls Building Fetter Lane, London, EC4A 1NL Date: 23 December 2025 Before: HIS HONOUR JUDGE TARIQ SADIQ - - - - - - - - - - - - - - - - - - - - - Between: MR NEIL DUKE Appellant - and – B & M RETAIL LIMITED Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Lee Bronze (instructed by USDAW) for the Appellant Mr Stefan Brochwicz-Lewinski (instructed by Horsfield Menzies) for the Respondent Hearing date: 25 September 2025 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Judgment approved by the court for handing down Duke v B & M Retail Ltd © EAT 2025 Page 2 [2025] EAT 195 SUMMARY Disability discrimination – sections 19 and 20 Equality Act 2010 Unfair dismissal Wrongful dismissal The Claimant was disabled by virtue of a lung condition. He had received letters from Public Health England that he was deemed clinically extremely vulnerable to COVID as a result of his disability. He was required by the Respondent to attend work during the pandemic. The Claimant requested to be absent from work on furlough as a reasonable adjustment. This was refused by the Respondent, but the Claimant was given the option …