Neil Ingram v Morgan Sindall Construction and Infrastructure Limited — 2021

Neil Ingram worked for Morgan Sindall Construction & Infrastructure Limited as a Site Manager on the DCWW contract from December 2017. The tribunal found that the respondent knew he was disabled within the meaning of the Equality Act 2010, with knowledge at least from 20 March 2020, when the respondent’s Emergency People Policy was applied. The policy required employees with certain underlying health conditions to self-isolate at home during the first COVID-19 lockdown, and the claimant was one of a number of employees affected by that policy.

The tribunal accepted the respondent’s evidence that there was a genuine downturn in work as AMP6 ended and AMP7 began, reflected in the reduction in DCWW revenue from £58 million to £42 million. It found that the requirements of the business for Site Manager work had diminished, that the four Site Managers in Wales were a reasonable redundancy pool, and that the claimant was fairly consulted on four occasions. The tribunal also found that the scoring exercise was carried out independently, was revised where justified after the claimant’s representations, and was followed by a fair appeal conducted by Mr McGregor. The unfair dismissal claim was therefore dismissed under section 98(4) ERA 1996, applying the redundancy principles in Safeway Stores v Burrell, Polkey, Williams v Compair Maxam and Capita Hartshead.

The disability discrimination claims also failed. On direct discrimination, the tribunal found no basis to infer less favourable treatment because of disability, and held that the redundancy decision was driven by the downturn in work and the selection process, not by the claimant’s diabetes or related conditions. On discrimination arising from disability, it held that self-isolation under the Emergency People Policy was separate from the redundancy decision and did not play any part in the dismissal. On indirect discrimination, the tribunal held that the PCPs requiring self-isolation for certain health conditions and requiring Site Managers to work on site were not discriminatory on the facts and were proportionate means of achieving legitimate aims, including workforce safety and the effective performance of the role. The reasonable adjustments claim failed procedurally because it was brought out of time; the tribunal refused to extend time under section 123 EqA, and said that even if it had done so, the suggested portacabin adjustment would not have been reasonable in the circumstances known in March 2020.