Ms A Fadipe (counsel) For the v Respondent — 2022

The tribunal accepted that Mr Walton was disabled by reason of osteoarthritis of the right knee and that Staffordshire Fire and Rescue Service knew of that disability from 4 September 2019. The dispute centred on the Service's Modified Duties Policy, under which he worked on modified duties for an extended period while being paid at his substantive rate, before pay was reduced after the policy's time limits and entitlement rules were applied. The s.15 EqA complaint was withdrawn at submissions stage.

On reasonable adjustments, the tribunal found that the relevant PCPs were the counting of time spent on modified duties against occupational sick pay and the application of the Modified Duties Policy itself. It held that the policy did not place Mr Walton at a substantial disadvantage compared with a non-disabled person, because the policy protected his pay during modified duties for substantially longer than the Grey Book sick pay provisions would have done, and because any comparator unable to perform operational duties would have been treated in the same way. The tribunal also held that the policy was reasonable, and for the indirect discrimination claim it found that the policy was justified by the Service's need to ensure fit firefighters, support return to work, and manage modified duties within a defined framework.

The unlawful deduction from wages complaint failed because the tribunal found clause 6.2.2 of the Modified Duties Policy applied to Mr Walton, that he understood its effect, and that by the time he went off sick in August 2020 he had exhausted his entitlement to occupational sick pay. The constructive unfair dismissal claim also failed: the tribunal held that the reduction in pay, the investigation into his conduct, the handling of the disciplinary process, and the refusal to adjourn the hearing did not amount to a repudiatory breach or show an intention to abandon the contract. He resigned before the disciplinary hearing proceeded, but the tribunal found he was not entitled to treat himself as dismissed.

For completeness, the tribunal said that if the matter had reached a capability process after the consultant orthopaedic surgeon's letter of 23 February 2021, it was a near certainty, assessed at about 90%, that employment would have ended at that stage within about six weeks. That was an alternative Polkey finding only. No monetary award was made because all live claims were dismissed or withdrawn.