Automated Summary
Key Facts
Mr. D Smith, a driver for Warrens Warehousing & Distribution (Midlands) Limited, was dismissed in December 2020 following long-term sickness absence due to injuries sustained to his right wrist and ankle in late November 2018. The Employment Tribunal found that Mr. Smith was a disabled person under the Equality Act 2010 at all relevant times. However, the Tribunal determined that Mr. Smith's claims for unfair dismissal, failure to make reasonable adjustments, and discrimination arising from disability were not well-founded. The key reason for the dismissal was that Mr. Smith did not obtain medical confirmation that he was fit to return to work (or would be fit to return soon), which meant the duty to make reasonable adjustments was not triggered. The Tribunal found that the dismissal was justified as a proportionate means of achieving the legitimate aims of maintaining health and safety (particularly for road users) and managing sickness absence, and that the dismissal was within the band of reasonable responses.
Issues
- Tribunal considered if claimant would have been fairly dismissed even with proper procedure, affecting compensation
- Tribunal assessed if dismissal was fair under ERA 98(4), considering reasonableness of dismissal process
- Tribunal determined if claimant met EqA disability definition, including impairment, substantial adverse effect, and long-term effects
- Tribunal determined if claimant properly asserted right to flexible working under ERA 80F
- Tribunal evaluated employer's belief in capability, consultation, investigation, waiting period, and dismissal reasonableness
- Tribunal determined if dismissal reason related to claimant's capability as per ERA 98(1)-(2)
- Tribunal assessed if dismissal reason was claimant's assertion of statutory right
- Tribunal assessed if dismissal was unfavourable treatment due to disability-related absence, and if justified
Holdings
The Tribunal unanimously determined that the claimant's claims of unfair dismissal (including on grounds of asserting a statutory right), failure to make reasonable adjustments under sections 20-21 of the Equality Act 2010, and discrimination arising from disability under section 15 of the Equality Act 2010 were not well-founded and failed. The Tribunal also determined that the claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 at all material times. The claimant's claims were dismissed in full.
Legal Principles
- The tribunal established that the burden of proof for demonstrating the treatment was proportionate lies with the respondent, requiring evidence to support their defense rather than mere generalisations.
- The tribunal applied Equality Act 2010 provisions including Section 6 for disability status, Section 15 for discrimination arising from disability, and sections 20-21 for reasonable adjustments, referencing the 2011 Code of Practice on Employment.
- The tribunal applied the proportionality test, part of judicial review principles, to assess whether the dismissal was a reasonable response to the disability-related absence, balancing legitimate aims (health and safety) against the discriminatory impact.
Precedent Name
- City of York Council v Grossett
- Woodcock v Cumbria Primary Care trust
- BS v Dundee City Council
- Doran v Department for Work and Pensions
- NCH Scotland v McHugh
- Lynock v Cereal Packaging Ltd
- O'Brien v Bolton St Catherine's Academy
- Hardys & Hansons PLC v Lax
- Hampson v Department of Education and Science
- RBS plc v McAdie
- Monmouthshire County Council v Harris
- Cadman v Health and Safety Executive
Cited Statute
- Equality Act 2010
- Employment Rights Act 1996
Judge Name
- Ms C Doyle
- Employment Judge Dunlop
- Mrs A Jarvis
Passage Text
- We noted that the respondent had led no evidence of any particular operational difficulty caused by Mr Smith remaining on sickness absence, or of any pressing need to resolve the situation. Indeed, the fact that the respondent had blithely ignored Mr Smith for around 18 months of sickness absence suggests quite the opposite.
- Mr Smith was in a safety-critical role. His physical impairment had the potential to impact his safety as a driver, with, potentially, critical consequences for other road users. Further, it was his own position that performing this physical role had caused and/or exacerbated the impairment. The respondent was legitimately concerned about the risk of recurrence/further exacerbation. Against that background, there was no medical evidence stating that, having been unfit to work for almost two years, Mr Smith was now fit to work.
- For these reasons, we were satisfied that Mr Smith was a disabled person within the meaning of s.6 EqA at all relevant times.