Mr G Richards v Openreach Ltd — 2024

Mr Richards had been employed by Openreach since 1 January 1990 and had worked as a Patch Lead for about three years before going on sick leave on 31 July 2023 with stress and anxiety. The tribunal found that by 21 November 2023 he told Mr Moses that he had suffered from stress and anxiety for around ten years, so the Respondent had knowledge of disability from that date. An occupational health report on 6 December 2023 said the return date was unknown, an imminent return was unlikely, and that a phased return would be helpful if and when he was well enough to come back.

On the reasonable adjustments complaints, the tribunal accepted that the Patch Lead job description was a PCP and that it put the Claimant at a disadvantage because his stress and anxiety meant he could not cope with the role. It held that the complaint at paragraph 5.5.2 was in time, but the OH report did not recommend waiting three months for a return; it only suggested a phased return if the Claimant became fit to return. Because the Claimant was too unwell to work in any capacity after the point at which the Respondent had knowledge of disability, the tribunal held it was reasonable not to wait three months and dismissed that complaint.

The tribunal held that the remaining reasonable adjustments complaints were out of time. It found that time began to run by the end of September 2023, when the Claimant's evidence showed that he believed the Respondent would not make the adjustments and that his "window of opportunity" to return on light duties had ended. It refused to extend time on a just and equitable basis, partly because it found that the proposed adjustments would not have been effective after the Respondent acquired knowledge of disability, and those complaints were dismissed for want of jurisdiction.

For discrimination arising from disability, the tribunal found that dismissal was unfavourable treatment because of the Claimant's absence, and that the absence arose in consequence of his disability. It rejected one of the pleaded aims, expecting minimum levels of attendance, as a stand-alone legitimate aim, but accepted the remaining aims including service quality, employee environment, resource management and compliance with OFCOM minimum service levels. It held that dismissal and the appeal were proportionate in circumstances where there was no known return date, the Claimant said he could not return to Patch Lead, he had not accepted the engineer role offered to him, and his absence was affecting colleagues, customers and service levels.

On unfair dismissal, the tribunal found that capability was the reason for dismissal and that Mr Platt genuinely believed the Claimant was no longer capable of performing his role. It held that belief was based on reasonable grounds, including the Claimant's own statements about his inability to return, the length of absence, the fit notes, and the occupational health report. It also found that the consultation, medical investigation and appeal process were fair, and that dismissal fell within the range of reasonable responses. The unfair dismissal claim was dismissed.