MR S SHONE v Flintshire County Council — 2017

Mr S Shone worked for Flintshire County Council as a plumber and was accepted to be disabled for Equality Act purposes. He was dismissed after allegations that he had been asleep in a works van, had misled occupational health about his fitness to work, and had thereby breached trust and confidence. The tribunal recorded that he was on a live final written warning, but its task was to decide whether the dismissal process was fair and whether the Equality Act claims were made out.

On unfair dismissal, the tribunal accepted that the respondent was entitled to investigate misconduct and to rely on the live final written warning if the process was otherwise fair. It held, however, that the investigation and disciplinary process were not fair in the circumstances. The tribunal criticised the framing of question 15 in the investigatory interview as putting a hypothesis to a vulnerable employee as if it were fact, and it said the respondent should have followed up the apparent admission by checking what had actually been asked and answered at the occupational health appointment in March 2016.

The tribunal also found that Dr Oliver's occupational health report of 25 May 2016 was relevant and should not have been excluded from the investigation report. That report said the claimant's medication could cause drowsiness and suggested he should not drive a works vehicle, which went to both the cause of the incident in the van and the question whether he had misled occupational health. The tribunal concluded that the investigation failed to obtain relevant and reasonably available evidence, and that the disciplinary hearing and appeal did not cure those defects, so the dismissal was unfair.

The claim for discrimination arising from disability succeeded in part. The tribunal accepted that the respondent's decision-makers were continuously linking the claimant's medication with his falling asleep and that the dismissal was therefore for a reason arising in consequence of disability. It rejected the respondent's justification defence, finding that the response was not proportionate because the respondent had not carried out further medical enquiries and had not properly implemented occupational health's recommendation that he work with a colleague, including for driving-related activity. The separate complaint about sickness absence did not succeed because the tribunal found the disciplinary process had not been started because of that absence.

The reasonable adjustments claim also succeeded in relation to the claimant's return to work arrangements. The tribunal found that occupational health had recommended that he work with a colleague, but the respondent did not ensure that this happened or adjust the driving arrangements. It accepted that other employees were driven to site and concluded that the failure to make this adjustment placed the claimant at a substantial disadvantage, which was reflected in the incident that led to disciplinary action. The judgment did not record a remedy figure; it listed a remedy hearing for 18 July 2017.