Mrs J Oligbo v London Borough of Tower Hamlets (England and Wales : Disability Discrimination : Unfair Dismissal) -[2017] UKET 3200906/2016- (27 July 2017)

Key Facts

Issues

• The Tribunal must determine whether the dismissal was fair under the Employment Rights Act 1996 (ERA), considering the reason (capability), the fairness of the procedure (including appeal delay), and whether the employer acted reasonably in treating capability as sufficient for dismissal.
• The Tribunal considers whether a re-engagement order is practicable, given the Claimant's physical limitations and the unsuitability of available roles.
• The Tribunal evaluates whether the dismissal was based on something arising from the Claimant's disability (e.g., sickness absence, inability to perform duties) and whether the Respondent objectively justified this as a proportionate means of achieving a legitimate aim (efficient service delivery).
• The Tribunal evaluates whether the ACAS Code on Discipline applies to this ill-health dismissal and whether a compensation uplift is justified.
• The Tribunal assesses whether the Respondent treated the Claimant less favourably than a non-disabled comparator under Section 13 of the Equality Act 2010 (EqA) by dismissing her due to her disabilities, and whether this treatment was justified as a proportionate means of achieving a legitimate aim.
• The Tribunal awards compensation for injury to feelings under the Equality Act 2010, determining the appropriate amount based on the discriminatory act (failure to extend redeployment) and applying the Vento bands with a 10% uplift.
• The Tribunal examines whether the Respondent applied provisions (attendance, duties) that put the Claimant at a substantial disadvantage due to her disability and failed to make reasonable adjustments, such as extending the redeployment period or modifying her role.

Holdings

• The claim of direct disability discrimination contrary to sections 13 and 39 of the Equality Act 2010 fails and is dismissed.
• The Respondent is ordered to pay £5050.60 comprising a basic award of £3839.94, injury to feelings compensation of £1100.00, and interest of £110.66.
• The claim of disability discrimination contrary to sections 15 and 39 of the Equality Act 2010 succeeds, as the Respondent failed to objectively justify the dismissal arising from disability.
• The claim of disability discrimination contrary to sections 20 and 39 of the Equality Act 2010 succeeds due to the Respondent's failure to make the reasonable adjustment of extending the redeployment period by 12 weeks.
• The Tribunal does not make a re-engagement order.
• The claim for unfair dismissal is well-founded.

Remedies

• £1100 awarded for injury to feelings with 10% uplift to £110.66 interest, totaling £110.66 in interest
• Interest of £110.66 awarded at 8% per annum from date of discrimination (1 year and 94 days)
• No re-engagement order made as job of receptionist was not suitable due to hours, grade, lack of experience, and physical requirements
• Basic award of £3839.94 calculated as 26 x £147.69

Monetary Damages

Legal Principles

• The Tribunal applied the Equality Act 2010 (EqA) sections 20 and 21, which require employers to make reasonable adjustments to avoid substantial disadvantages for disabled employees. It found the Respondent failed to extend the redeployment period, a reasonable adjustment, as it would have provided a real prospect of avoiding dismissal by allowing more time for sedentary role opportunities.
• Under section 15 of the EqA, the Tribunal determined that the Respondent's dismissal of the Claimant (due to her disability-related absences and inability to perform physical duties) was not objectively justified as a proportionate means to achieve the legitimate aim of providing an efficient service. The failure to extend the redeployment period before dismissal was deemed a discriminatory act.
• The Tribunal considered the burden of proof for reasonable adjustments, emphasizing that the employer must demonstrate that no reasonable steps were taken to avoid disadvantage. It found the Respondent's refusal to extend the redeployment period, despite its procedure allowing for it, failed this test.
• The Tribunal referenced the Vento bands to assess injury to feelings compensation, awarding £1000 (prior to uplift) at the low end of the low band. This was adjusted to £1100 with a 10% uplift under the Court of Appeal's guidance in De Souza v Vinci Construction (UK) Ltd [2017].

Precedent Name

• Da'Bell
• London Underground v O'Sullivan
• Holmes v Qinitec
• Cumbria Probation Board v Collingwood
• De Souza v Vinci Construction (UK) Ltd
• Romec Limited v Rudham
• Royal Bank of Scotland v Ashton
• Leeds Teaching Hospital NHS Trust v Foster

Cited Statute

• Equality Act 2010
• Employment Rights Act 1996

Judge Name

• Mr D Ross
• Mr P Quinn
• Employment Judge Moor

Passage Text

• 4. The claim of disability discrimination contrary to sections 20 and 39 of the Equality Act 2010 succeeds in that the Respondent failed to make the reasonable adjustment of extending the redeployment period by 12 weeks.
• 1. The claim for unfair dismissal is well-founded.
• 5.2. An award of compensation for injury to feelings of £1100.00.