Employment Judge ManleyMr P Linstead (instructed by Counsel) for claimantMr L Ashwood (instructed by Solicitor) for respondentDate 20 April 2017
JUDGMENT
[1]The claimant was a disabled person at the material time.[2]The claimant was not treated less favourably than others because of his disability.[3]The claimant was unfavourably treated because of something arising in consequence of his disability and the respondent cannot show that the treatment was a proportionate means of achieving a legitimate aim.[4]The respondent failed to make the reasonable adjustments set out below.[5]This matter is already listed by agreement for remedy on Friday 21 July 2017. Orders are made at the end of this judgment to ensure the parties are adequately prepared for that hearing.
REASONS
[1]The claimant presented a claim in the employment tribunal on 25 February 2016 which contained complaints of unfair and wrongful dismissal and disability discrimination. At a preliminary hearing on 31 August 2016, the unfair and wrongful dismissal complaints were struck out for jurisdictional reasons. The claimant’s disability discrimination complaint was allowed to proceed and was listed for these four days.[2]It appeared that no list of issues had been drawn up before the hearing but, at the commencement of the hearing an agreed list of issues was handed to the tribunal, which reads as follows: - (i) Disability: reasonable adjustments[1]It is agreed that C suffered from a disability as defined by s.6 EqA 2010 between 2010 and 22 December 2015 as a result of a back condition? 1.1. Did R1 apply a provision, criterion or practice (“PCP”) which placed C at a substantial disadvantage in relation to the employment in comparison with persons who are not disabled? C contends that R applied some or all of the following PCPs to him within the meaning of s.20 EqA. The adjustments under para 1.2 below which relate to each PCP are set out in parentheses(a) the requirement to be free of recurring back pain as a condition of performing work; the particular disadvantages to which this subjected C are (i) that from 21 September 2015 onwards, he was not permitted to work for R in any capacity, despite making it clear that he wished to do so and was capable of doing; (ii) he was dismissed on 23 October 2015, apparently on grounds of capability; (iii) he was paid at sick pay rate from 21 to 29 September 2015; all the adjustments below relate to this disadvantage;(b) the requirement to do work involving heavy lifting; insofar as C had a difficulty with heavy lifting or R perceived that he did, this PCP subjected him to a particular disadvantage in that (i) from 21 September 2015 onwards, he was not permitted to work for R in any capacity, despite making it clear that he wished to do so and was capable of doing; (ii) he was dismissed on 23 October 2015, apparently on grounds of capability; (iii) he was paid at sick pay rate from 21 to 29 September 2015; all the adjustments below relate to this disadvantage;(c) the requirement to perform work which combined operating machines and trucks with small amounts of heavy lifting; the disadvantages and the relevant adjustments are the same as for PCP (b);(d) the refusal to allow employees to perform light duties. The particular disadvantage to which this subjected him is that the failure to make available to him light duties on 21 September 2015 meant that he was not permitted to return to work for R despite making it clear that he wished to do so; the relevant adjustment is adjustment (b) below: to allow him to return as a picker, and (c) giving him a phased return if necessary, which could include a period of light duties whilst he got up to speed. 1.2. C contends that R failed to: (a) obtain a medical assessment to fill gaps in their knowledge about C’s medical condition, such as the correct diagnosis of the condition and possible treatment for it; such an assessment could have been obtained from a consultant orthopaedic surgeon; (b) allow C to return to work as a picker, as he requested; (c) consider whether a phased return was appropriate, if necessary with the assistance of medical advice; (d) allow C to work as a reach truck driver;(e) reassess C for work as a reach truck driver;(f) relax any requirement that if C has suffered from back pain, he was not permitted to work on a reach truck;(g) provide training to C such that he was able to perform other roles, such as training in typing and administrative functions;(h) redeploy C to another role in the warehouse which is less physically demanding than picking and/or offer him the opportunity to apply for such a role; the roles in that category include:(i) Reach Truck; (ii) Hygiene Operative; (iii) Recoup; (iv) Stock Integrity; (v) Warehouse Loading; (vi) Goods in (vii) On line picking (viii) Tobacco (i) carry out a work station assessment in relation to C’s picking role in order to ensure that he was performing it in the best possible way, having regard to his back condition;(j) allow C to carry out any of the jobs referred to above but with the elements they considered he could not do removed; C contends that R’s letter dated 22 December 2015 inaccurately states the amount of heavy lifting work involved in those jobs;(k) pay C his full salary between 21 September and 29 September 2015;(l) delay the date of C’s dismissal for a reasonable period of time in order to allow him to apply for suitable vacancies for alternative employment when they arose. 1.3. Did R by one or more of these actions discriminate by failing in its duty to make reasonable adjustments pursuant to ss.20 and 21 EqA? (ii) Discriminatory dismissal The Claimant relies on a hypothetical comparator.[3]Was C’s dismissal on 24 October 2015 an act of direct disability discrimination contrary to s.15 and s.39(2)(c) EqA 2010? C contends that it was because:(i) the decision to dismiss was based on various assumptions about his ability to carry out the job in the future and its impact on his health which were not based on adequate understanding or medical evidence;(ii) further or alternatively, when he was dismissed R had failed in its duty to make reasonable adjustments.[4]By dismissing C, did R treat C unfavourably because of something arising in consequence of his disability, contrary to s.15 EqA?[5]If so, can R show that the treatment was a proportionate means of achieving a legitimate aim? (iii) Remedy[6]If there was a failure to make reasonable adjustments, and /or a discriminatory dismissal, what if any damages or other remedy is C entitled to? 3. The list of issues which was handed in did not have the item which appears above at 1.2 (l) but it was included in the list emailed later to the employment judge. This was discussed during closing submissions and is determined later. 4. In summary, the respondent having conceded that the claimant was disabled at the material time and that the dismissal was for a reason arising from the claimant’s disability, the tribunal was concerned with whether there was direct discrimination, whether there was justification for the unfavourable treatment and whether there were any reasonable adjustments that the respondent had failed to make. The Hearing 5. At the hearing, we heard evidence from four witnesses. We heard from the claimant and from his witness, Mr Chance, who is a former work colleague. We also heard from Mr Tabois, who was the dismissing officer, and from Mr MacCallum, who was the appeal officer. 6. We had before us a relatively substantial bundle of documents and, as is normal, we took the first part of the hearing to read the witness statements and the most relevant documents. The witnesses were then cross examined and we heard oral submissions along with detailed written submissions in the middle of the third day. Because of the complexity of the matter, the tribunal decided it was necessary to reserve judgment and we therefore agreed a date for remedy, should that be appropriate.
Facts
[7]The following are the facts which the tribunal have determined and which it considers to be most relevant to the issues before us.7.1 The claimant commenced work for the respondent on 14 January 2008. His contract of employment stated that he was a warehouse operative. Between 2010 and the claimant’s dismissal in October 2015, he worked in the capacity of “picker” in the respondent’s substantial warehouse in Hatfield.7.2 The respondent has an agreement with the recognised trade union, USDAW, that those pickers who meet the relevant minimum targets and who have passed a health assessment for reach truck duties, can also undertake that work from time to time. The claimant was one of these people. He was therefore carrying out picking work which is, on any account, hard physical work, where there are relatively challenging targets to meet involving a significant amount of lifting heavy boxes and moving them with the aid of a low level operating platform (‘LLOP’) When asked to do so, the claimant and others would take turns carrying out reach truck duties which, it is generally agreed, is not as hard physically in that there is not as much heavy lifting as there is when picking.7.3 We set out below the facts that we have found in relation to the different warehouse roles mentioned in the tribunal hearing. Before we do that, we describe the sort of environment that the claimant was working in.7.4 The respondent is a relatively substantial organisation with several warehouses. The Hatfield warehouse is very large. There are around 370 employees with an additional 100 agency workers. A high volume of stock moves in and out of the warehouse each week. The warehouse was described to us as being the size of eight football pitches with 68 aisles containing about 20,000 spaces for pallets with the aisles ranging from 47-75 metres long and which can go up as high as 10 metres. Goods are received and then are sent out either to the respondent’s cash and carry branches or to other retail customers.7.5 The respondent has an absence management policy, parts of which are relevant to the issues. It appears between pages 51 to 81 of the bundle. The tribunal believes that the following extracts are relevant: “Returning to work The meeting should explore the reason for the absence and the following points should be covered; Is the colleague fit to resume normal duties If unfit for normal duties, what are they able to do Whether the absence is for personal reasons or work-related
The Law
[8]This is now solely a disability discrimination complaint. The relevant sections of the Equality Act 2010 are as follows:-[13]Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.[15]Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[20]Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[21]Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.(4) -(5) -(6) A reference to the court includes a reference to— (a) an employment tribunal; 9. The burden of proof provisions as set out in s136 EQA above apply to all discrimination complaints. That requires the claimant to prove the primary facts from which the tribunal could conclude there has been discrimination. If there are such facts, the burden shifts to the respondent to explain any such treatment is without discrimination. Those sections of EQA which provide for the respondent to justify any otherwise discriminatory treatment require the tribunal to consider proportionality and, in particular, to balance the discriminatory effect with business needs. The more serious the adverse impact the more cogent the business reasons should be. 10. The claimant also relies on direct discrimination under s13EQA. For such a complaint, a comparator is necessary and should be one whose circumstances are not materially different (s23EQA). There is no provision in EQA which would allow a respondent to justify direct discrimination. 11. The complaint of a failure to make reasonable adjustments was central to this claim. The relevant sections are as set out above. The tribunal’s task is to first consider the proposed provisions, criteria or practices (PCPs) and determine whether there was a PCP that placed the claimant, as a disabled person, at a substantial disadvantage. The question of whether there was substantial disadvantage requires identification of a non-disabled comparator (usually in these cases, a hypothetical comparator) who would not suffer the disadvantage. If there are one or more such PCPs and the employer has knowledge of the disability and its effects, the tribunal will move to consider whether the respondent can show it has taken such steps as were reasonable to avoid that disadvantage. This requires careful analysis of the evidence and finding of the relevant facts to which the legal tests should then be applied. In considering what steps would have been reasonable, with the burden of proof resting on the employer, the tribunal looks at all the relevant circumstances and determining that question objectively, may well consider practicability, cost, service delivery and/or business efficiency. 12. The complaint of discrimination arising from a disability needs no comparator but the tribunal needs to consider what facts, if any, show unfavourable treatment linked to the disability. If that is shown, the employer can seek to show with evidence, that it had a legitimate aim which it used proportionate means to achieve. The tests for each section under EQA are as set out in the issues and will therefore be clear from our conclusions. 13. Both parties made detailed written submissions which were helpful to us in our deliberations. The claimant’s representative also added to his written submissions orally and, again in some detail. There is little dispute between the representatives on the legal tests as set out above. 14. For the claimant, it was submitted that the evidence was such as to mean he should succeed in all aspects of his complaints. His representative referred us to Aylott v Stockton on Tees [2010] IRLR 994, particularly because the Court of Appeal were there considering direct discrimination and the identification of a hypothetical comparator. That case makes it clear that the question of an appropriate comparator and whether treatment was on a prohibited ground are intertwined. In Lord Justice Mummery’s words – “There is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others?”. This is especially so in cases where stereotypical views have been formed. For the respondent, on the question of whether there was direct discrimination, it was submitted that the dismissal was not on the ground of his disability (his bad back) but because he was unable to work and had had time away on health grounds. 15. On the issue of justification for disability related unfavourable treatment, we were referred to Hardy and Hansons v Lax [2005] ICR 562 which emphasises the need for an objective assessment of balance as mentioned above. 16. Several cases were also referred to in the submissions on the important issue of whether there were any failures to make reasonable adjustments. We will not set them out here, because, as has been stated, there was little dispute on the legal tests to be applied. Those which were particularly useful to us when we were deliberating were HM Prison Services v Johnson [2007] IRLR 951; Smith v Churchills Stairlifts plc [2005] EXCA Civ 1220; Croft Vets & Others v Butcher UKEAT 430/12; Noor v FCO UKEAT 470/10 and Griffiths v Sec of State for Work and Pensions [2015] EWCA Civ 1265. Failure to make reasonable adjustments 17. We therefore make our conclusions by reference to the list of issues referred to earlier. We start with the complaint of failure to make reasonable adjustments. 18. The first question for us under (i)1.1 is whether the respondent applied a provision, criterion or practice (PCP) which placed the claimant at a substantial disadvantage in relation to employment in comparison with persons who are not disabled. There are four PCPs relied upon by the claimant. Two of those at (b) and (c) are accepted by the respondent. These are “the requirement to do work involving heavy lifting” and “the requirement to perform work which combined operating machines and trucks with small amount of heavy lifting”. The tribunal also accepts that those are PCPs. They placed the claimant with his bad back at a substantial disadvantage as compared to people who did not suffer from a bad back which condition had caused them to have time away from work. 19. There are then two other PCPs which are not accepted by the respondent. At 1.1 (a) it is alleged that the “requirement to be free of recurring back pain as a condition of performing work” is a PCP. The tribunal does not accept that the respondent did apply such a requirement. If an employee had recurring back pain and did not mention it to the respondent, nothing would have been done about it. The requirement was that an employee did not have substantial periods of absence because of back pain, rather than a requirement to be free of any such pain. The employment tribunal does not accept that is a PCP. 20. Turning to the fourth one at (d) “the refusal to allow employees to perform light duties”, the respondent disputes that this is a PCP. The respondent says that there was no such refusal but accepts that its own policy says that the site has no such light duties (see extract at paragraph 7.5 above). The respondent also says that there was sufficient evidence before the tribunal that there were some circumstances in which light duties could be given. However, most of the evidence before us was that no light duties were available although the claimant had raised light duties and they had been mentioned by Mr Tabois but taken no further. The tribunal finds that this was a PCP which was applied, that it caused substantial disadvantage to the claimant with respect to the difficulties for him carrying out heavy lifting as compared to other employees who had not had a lengthy absence because of a bad back. 21. We have found therefore that the respondent applied three PCPs. We therefore turn our attention to whether, those PCPs having been found, there was a failure to make any reasonable adjustments. We answer these under (i)1.2 of the List of Issues between (a) and (l). We have not always answered the issues in the order is which they are listed because it sometimes has made sense for us to consider some items together. However, it is hoped that our findings are clear.[22]At 1.2 (a) the alleged failure is to obtain a medical assessment to fill in gaps in the respondent’s knowledge including a diagnosis and possible treatment. It is true that the respondent did obtain a medical assessment from Dr Thornley. It also had a short physiotherapy report which indicated that the claimant’s back was better. The claimant accepts that this cannot be a reasonable adjustment on its own but that it “would have facilitated other reasonable adjustments”. The respondent’s representative submitted that there were no such gaps in the respondent’s knowledge. We agree that this cannot, without more, amount to a failure to make reasonable adjustments but the information the respondent did have was, the tribunal finds, insufficient to give it a clear view of the claimant’s capabilities and prospects of returning to work. We deal with this aspect later in the judgment.[23]We cannot find that there was a failure to make a reasonable adjustment when the respondent did not allow the claimant to return to work as a picker (b). There was certainly enough information before the respondent, when it took the decision that he could not return to work as a picker, that that would be detrimental to his health. That much is clear from Dr Thornley’s report. Whatever else we say about Dr Thornley’s report, which we will come to later, there is clear advice that the claimant should not be working as a picker and we cannot find that would have been a reasonable adjustment. Indeed, it is not an adjustment at all as that was his job.[24]We will consider questions as to a phased return (c) at the same time as we consider redeployment later under (h).[25]We then considered purported reasonable adjustments (d), (e) and (f) which all relate to reach truck driving. Again, we have formed the view that this would not have been a reasonable adjustment. On the evidence of the claimant himself during discussions, he clearly thought there was some risk to his back of being a reach truck driver. We accept, on the evidence before us, that that role also included some heavy lifting and that was at a significant enough level that he should not have been allowed to return to it. As we say later, there might have been a question about reassessment of that at some later point but at the point the claimant’s dismissal was decided upon, he could not have returned to that role.[26]At (g) there is proposed adjustment of providing training. In particular, it was submitted that the claimant should have been trained in typing so that the respondent could have then allowed him to undertake administrative work. We have insufficient evidence to find that the claimant would have been able to reach the level expected for the administrative functions which were available. Unfortunately, it was clear that the claimant was not able to reach the standard required. The work he had been doing for the past few years was of a manual nature and it is clear to the tribunal, as it was to the claimant, that that was where his skills lay. The tribunal does not accept that it would have been a reasonable adjustment to provide training, particularly as it is unclear how much training or for how long that might have taken.[27]We therefore turn to matters raised under (h) and take that with the question of a phased return. This is the very important question of whether the claimant might have been redeployed to another role. We have considered the list of possible roles between (h) (i) - (viii). We have already dealt with the question of the reach truck. As far as hygiene operative, recoup, warehouse loading and goods-in roles are concerned, we are of the view that the respondent has provided sufficient evidence that this work all included sufficient heavy lifting which would almost certainly have meant it was not a reasonable adjustment for the claimant.[28]However, there remains the issue of whether on-line picking (vii) and/or tobacco (viii) might have been work which the claimant could have carried out either on a phased return basis or possibly on a permanent basis. We take into account here the lack of medical information the respondent had on the claimant’s condition. Save for having been told that he had a bad back and that picking would be detrimental, there was very little information on how his condition affected his walking, twisting or driving. These roles did not involve the amount of heavy lifting of the other roles. The tribunal therefore finds, on the balance of the evidence before us, that a reasonable adjustment would have been to place the claimant in one or both of those roles, possibly on a temporary basis while his work was assessed. The tribunal believes that that would have gone far enough to alleviate the disadvantage.[29]We turn then to reasonable adjustment (i) which is the suggestion that a workstation assessment in relation to his picking role would have been a reasonable adjustment. We cannot find that this would be a reasonable adjustment because, as the respondent points out, there was no suggestion that he was carrying out that role in any way incorrectly. In fact, he was performing well but for the fact that the work might have contributed to his back condition.[30]As for (j) which is allowing him to carry out roles with some aspects removed, we cannot agree that was a reasonable adjustment and remain unclear as to what aspects could have been removed from which roles. We do not find that there has been an exaggeration of the heavy lifting involved in most roles, except perhaps for on-line picking and tobacco.[31]As for (k) we find that it would have been a reasonable adjustment to pay the claimant his full salary from the time he made himself available to work. The claimant said he was able to come back to work, the doctor had signed him as fit to return and payment of full salary would have alleviated the disadvantage of him being unable to return while matters were being considered by the respondent.[32]As far as (l) is concerned, this is the claim that delaying the date of dismissal would have been a reasonable adjustment. The tribunal had insufficient evidence of a delay in dismissal being anything which would alleviate any disadvantage to the claimant. There is little or no evidence that any other vacancies had arisen in that period than might not have been available earlier.[33]In summary, under issue 1.3, we consider whether the respondent failed in its duty to make reasonable adjustments. The short answer to this is that we have found that the respondent did fail in some respects but not all those suggested by the claimant. The respondent’s failure was, in part, at least, related to the lack of objective evidence it had before it when the decision to dismiss was taken. Unfortunately, we find the occupational health report was woefully inadequate. Dr Thornley did not examine the claimant physically and he gave no diagnosis, save for saying the claimant had had back pain with no consideration of how physically that was caused. He did not say whether the claimant had an “underlying back related issue” and failed to answer specific questions, for instance on “any action we can take to help prevent further issues”. The letter hints at contradiction in that it said that the claimant should return to work because he said he was able to, but then says that he should refrain from picking without any consideration of what he could and could not do. It is not specific with respect to what work it was that might be difficult for the claimant. Given that a large proportion of the claimant’s job was driving, and, on the respondent’s account, that would have involved twisting and turning, there is no consideration of that either.[34]Whilst we appreciate that Mr Tabois had good knowledge of the jobs in the warehouse, it is clear that he did not systematically consider each job and analyse, with any level of detail, what tasks needed to be performed, what weights lifted and what other physical aspects were necessary. When Mr MacCallum came to look at it he considered, several times, whether the claimant could walk, push or pull weights. None of this had been considered by either the occupational health doctor or by any other sort of workplace assessment.[35]One of the problems for the tribunal is that it is now being put in a position to try to assess whether the claimant was capable of carrying out these roles when it too has insufficient information before it. However, on the evidence before us, including that information before the respondent at the time, we have taken the view that the respondent failed to make a reasonable adjustment when it failed to redeploy him to on-line picking and/or tobacco whilst assessments were made. What was really needed, before the decision to dismiss was taken, was a further detailed report from an occupational health doctor or a specialist which included, as far as possible, diagnosis, prognosis and consideration of aspects of the various roles rather than concentrating, as Dr Thornley and the respondent did, solely on picking. The respondent might also have found a workplace assessment for the claimant in these roles very useful. Without knowing what caused the claimant’s back pain, for instance whether it was muscular or skeletal, the respondent was unable to assess what he could or couldn’t do and whether there might be treatment.[36]The tribunal accepts that the respondent owed a duty of care to the claimant. However, it also has a duty not to discriminate on the grounds of disability and to consider reasonable adjustments in the light of information either that it has at the time, or could reasonably get before any final decision is taken, particularly where the decision is whether to dismiss. The respondent’s own policy envisages a nine-month period before dismissal and the claimant’s absence had only been for two months. Our view is that the claimant had a real chance of undertaking at least some of the roles in the warehouse, either on a temporary or a permanent basis and any hesitation the respondent had about that should have been considered more carefully with follow-up advice. Although Mr MacCallum did attempt to get this further information, Dr Thornley’s further letter did not assist at all. Direct disability discrimination[37]We next consider the direct disability discrimination complaint under issue (ii) 3 under Discriminatory Dismissal. We find the dismissal was not an act of direct disability discrimination. The respondent did not dismiss the claimant because he had a bad back but because it believed that he could not carry out the heavy lifting aspects of a number of roles in the warehouse; that is not direct disability discrimination. A hypothetical comparator without the claimant’s bad back but with other issues which prevented heavy lifting would not have received different treatment. This complaint fails. Disability related discrimination[38]We then consider the disability related complaint under s15 EQA at (ii) 4. First, the respondent accepts that it did treat him unfavourably because of something arising in consequence of his disability when it dismissed him.[39]The respondent seeks to justify the discrimination because it says that the dismissal was a proportionate means of achieving a legitimate aim. That justification is said to be because there was no work which would not hurt the claimant’s back and because of its duty of care towards him. The tribunal does not accept that this is a sufficient answer.[40]This employer had before it an employee who said he was fit to return and he had his GP’s support and a physiotherapy report which, to some extent, at least, supported that view. The respondent has not shown that it undertook any exercise where it balanced the obvious disadvantage to the claimant in losing his job against taking some steps to find work that he might be able to do. The respondent did not have enough reliable information on the claimant’s abilities to decide whether there were other roles he could have undertaken on a temporary or permanent basis. Proportionate means always requires a balancing of the discrimination with the legitimate aim. The respondent does have a legitimate aim to carry out a profitable business. However, given that we have accepted the evidence that there are some jobs which, on the face of it and without further detailed investigation, appear to be somewhat lighter than the picker/reach truck driver job, the respondent has failed to show that dismissal was a proportionate means of achieving a legitimate aim. If the legitimate aim was to prevent injury to the claimant as a disabled person, considerably more advice was needed before a dismissal took place.[41]The respondent failed in its duty to make reasonable adjustments in two respects. First, it failed to properly consider placing the claimant in two possible alternative roles, either temporarily or permanently. Secondly, it failed when it did not pay him between 21 and 29 September 2015. It did not fail in its duty with respect to the other reasonable adjustments suggested.[42]The respondent also treated the claimant unfavourably when it dismissed him without having received sufficient medical information and without trying or assessing him for those possible alterative roles.[43]The respondent did not treat the claimant less favourably because of his disability.[44]The question of what damages or other remedy to award will be considered at the remedy hearing on Friday 21 July 2017 unless the parties arrive at an agreement on remedy. ORDERS Made pursuant to the Employment Tribunal Rules 2013
The Law
The Law
The Law
[1]The claimant will serve an updated schedule of loss on the respondent and the tribunal by 19 May 2017[2]The respondent will serve a counter schedule of loss on the claimant and the tribunal by 9 June 2017[3]The parties will agree a joint bundle of documents for the remedy hearing by 23 June 2017[4]Any witness statements on remedy to be exchanged by 7 July 2017 3. The parties will seek to agree as many aspects as possible, including gross and net weekly pay, any loss of wages and send an agreed list of what remains in dispute to the tribunal by 17 July 2017. CONSEQUENCES OF NON-COMPLIANCE[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.[2]The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. No order for costs is made against the claimant.[2]A wasted costs order is made against the above named firm of solicitors in the sum of £830 and it is ordered to pay that sum to the respondent.