Ms Durham (consultant) For the v Mr Yates (solicitor) — 2019

At the open preliminary hearing in Birmingham on 14 May 2019, the tribunal dealt with whether Mr Joyce had been dismissed and whether his left foot and ankle condition amounted to a disability. It heard evidence from the claimant and Mr Dean Silcox, and considered the agreed bundle, occupational health material, and the letter from Dr Srinivasan.

On the dismissal issue, the tribunal found that after a series of capability meetings the claimant was offered a Gatehouse role on a warehouse operative's salary, with pay protection until 1 March 2018. It accepted that he was given time to consider the offer and that he then wrote accepting it, albeit reluctantly. The tribunal held that this was an effective variation of contract rather than a dismissal and re-employment, and that there was no working under protest or duress.

Accordingly, the unfair dismissal claim was not well founded and was dismissed. The tribunal referred to constructive dismissal principles, Hogg v Dover Council and Extrusions Ltd v Yates, but distinguished the facts because the claimant had a real choice and agreed to the change instead of progressing further down the capability route.

On the disability issue, the tribunal found that the claimant had a physical impairment affecting his left foot and ankle, including drop foot, with long-term mobility difficulties. Applying section 6 of the Equality Act 2010, Schedule 1 and Goodwin v The Patent Office, it found that walking, stairs, uneven ground and prolonged standing were affected in a way that was substantial rather than minor or trivial, so the claimant was disabled within the meaning of the Act. The hearing did not decide whether any disability discrimination claim succeeded; it only determined the preliminary disability-status issue.