Mr Hopper v Bridgwater and Taunton College — 2020

Mr Hopper was employed by Bridgwater and Taunton College as Course Leader for furniture studies and was dismissed for redundancy with effect from 22 November 2018. The judgment records that his earlier disability discrimination claim had already been disposed of by EJ Reed on 31 January 2020 as out of time and not just and equitable to extend time, so the hearing before Employment Judge Christensen concerned unfair dismissal only.

The College carried out an Autumn 2018 redundancy exercise and placed three Course Leaders in a pool. The selection criteria included Attendance, and the redundancy guidance said care had to be taken not to include disability-related absences. Mr Hopper’s absences were all connected with longstanding knee problems, including two injuries, surgery in September 2017 and ACL reconstruction surgery on 8 August 2018. The tribunal found that neither the line manager nor HR gave any consideration to whether those absences might be disability-related, and no fresh occupational health advice was sought after the August 2018 surgery.

The claimant was told on 24 October 2018 that he was the lowest scoring Course Leader, with an overall score of 9 at that stage. After an error in the Cost of Redundancy criterion was corrected, he still remained lowest in the pool, with scores of 14 against 17 and 16 for the others. The tribunal found that if his knee-related absences had been excluded from the Attendance criterion, his score would have been 20, ahead of the others. He was consulted on 9 November 2018, then volunteered for redundancy and was accepted. The tribunal held that the respondent should have applied some thought to whether his absences were disability-related before scoring him, and that the failure to do so meant the Attendance criterion was not fairly applied.

The respondent argued that it was entitled to take the claimant’s request for voluntary redundancy at face value and that the Equality Act issues should not be imported into the unfair dismissal claim. The tribunal rejected that approach, holding that the circumstances leading to the request for voluntary redundancy formed part of the fairness assessment under s.98(4) ERA 1996. It also found that the appeal did not cure the unfairness, because HR relied on an old March 2018 occupational health report without further investigation, even though the report pre-dated the August 2018 surgery and did not address whether the claimant met the Equality Act definition of disability. The judgment therefore found the dismissal unfair and directed that remedy be dealt with later.