Mr Frantisek Havelec v University Hospitals Sussex NHS Foundation Trust — 2022

The tribunal recorded that Mr Havelec was employed as a band 3 Domestic Supervisor from 25 July 2005 until dismissal on 27 May 2020. He had disabilities consisting of a knee injury, depression and anxiety, and rheumatoid arthritis, and the respondent admitted knowledge at the material times. His claims were direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, and unfair dismissal; all were dismissed.

On reasonable adjustments, the tribunal accepted that the physical requirements of Mr Havelec's job were a PCP and placed him at a substantial disadvantage, but found that reasonable adjustments had been made when he was at work, including mainly office-based or lighter duties, limits on walking and movement, rest breaks, extra time to use lifts, and phased returns where recommended. The tribunal found that the shared office-space allegation was not raised at the time and that the respondent did not know, and could not reasonably have been expected to know, that the office environment placed him at the alleged disadvantage. It also found that redeployment was not a reasonable adjustment while he remained unfit for any work, because occupational health advice did not identify any role he was fit to perform.

The direct disability discrimination claims were dismissed. In relation to the assistant domestic manager or interim deputy domestic manager post, the tribunal found that the post was not openly advertised and that this was not in line with the expectation of the recruitment policy, but accepted the respondent's explanation that a higher-banded employee with relevant experience was appointed to act up during reorganisation and that the decision was not because of disability. In relation to the Assistant Portering and Waste Manager role, the tribunal found that Mrs Campbell agreed to move the interview site after Mr Havelec raised mobility difficulty, that her email did not state that he could not do the job, and that the successful candidate scored significantly higher at interview.

The s.15 disability discrimination claims about the Assistant Portering and Waste Manager process were also dismissed. The tribunal accepted that mobility difficulty arose from disability and that the email was partly sent because Mr Havelec had raised mobility, but found that the email was not unfavourable treatment. It also accepted that the respondent had legitimate aims in ensuring the claimant understood the Worthing base and the walking involved in the role, and in ensuring candidates understood and met essential role requirements.

The tribunal found that the respondent failed initially to engage with Access to Work after contact about a workplace assessment, but concluded that this was poor communication and oversight rather than treatment because of disability. It accepted the respondent's position that a workplace assessment would need to be considered once Mr Havelec was fit to return and that, at the time, occupational health advice was that he was not fit for any sort of work.