M Thurling v Rockwool Limited — 2022

The claimant, M Thurling, had long service with Rockwool Limited and had been diagnosed with leukaemia in 2017. An occupational health report on 9 March 2021 said he was unfit for the full range of his rod mill operator duties because of breathing difficulties and joint pain probably linked to chemotherapy, and recommended redeployment. He returned on 1 April 2021 on temporary light duties, then moved through a capability process into a warehouse operator role, which was Grade 1 rather than his former Grade 2 role. The pay difference was found to be £379.08 per month, with the claimant's schedule of loss putting the potential effect to retirement at £217,971.

On the reasonable adjustments complaint, the tribunal accepted that the respondent applied a PCP requiring rod mill operators to do heavy manual handling and frequent use of stairs, and that this placed the claimant at a substantial disadvantage because he could not safely do those tasks. It also accepted the respondent knew of his disability and the disadvantage. However, the tribunal held that the pleaded adjustment was indefinite pay protection at Grade 2 after redeployment, and it was not reasonable to require the respondent to continue paying Grade 2 salary for a Grade 1 job on a permanent basis. The tribunal said the claimant's case was pleaded as pay protection only, so it could not recast the claim to a different temporary adjustment, and it distinguished the claimant's situation from the historic retained-pay arrangements under the 2007 grading agreement.

On the section 15 claim, the tribunal found that reducing the claimant's pay to Grade 1 after the trial period was unfavourable treatment, and that it was because of something arising in consequence of disability, namely his inability to do the full rod mill role because of the effects of chemotherapy and the resulting redeployment. The respondent relied on fairness in a graded pay structure and on avoiding tension and complaints about pay within the workplace as legitimate aims. The tribunal accepted those aims as legitimate, and accepted that the pay structure reflected the different demands of the two roles.

The tribunal nonetheless held that the respondent had not shown the actual treatment was proportionate. It found a lesser measure was available: keeping the claimant on Grade 2 pay until Unum had decided whether to top up his pay under the insurance process. In the tribunal's view, that would have preserved the respondent's longer-term pay structure, given the claimant a transitional period to exhaust the insurance route, and struck a fairer balance between the respondent's aims and the claimant's financial loss. The section 15 complaint was therefore well founded and will proceed to a remedy hearing. The tribunal made no award in this liability judgment and made no findings on other roles or wider redeployment options, because those issues were not before it in any pleaded form.