In person, assisted by Mr K Wilson For the v Respondent — 2022

The claimant worked for Network Rail Infrastructure Limited as a Works Delivery Manager from 21 January 2014. After workplace difficulties in 2017 and 2018, he was absent with mental health difficulties and later returned on a phased basis to a stores role at Raven House in Gateshead. Occupational Health repeatedly advised that he should not return to Leeds and should be considered for work closer to home, and from late 2019 the respondent pursued redeployment, sent vacancy lists, arranged shadowing, and kept him on his substantive salary until the dismissal process ended with termination on 11 May 2021.

On unfair dismissal, the tribunal found that the reason for dismissal was capability because the claimant was not able to return to his substantive role and suitable redeployment had not been achieved. Applying s.98(4) ERA 1996 and the range of reasonable responses, it held that dismissal was fair. The tribunal accepted that there had been a delay before the first Occupational Health referral, but found that advice was then obtained and followed, that redeployment efforts were made, and that the claimant's salary expectations, wish not to manage staff, geographical constraints, and right-knee limitations narrowed the available roles. It accepted evidence that the Level Crossing Manager role was highly pressured and involved track walking and wide-area risk management, and concluded that role would not have been suitable. It noted but did not finally determine issues about a crossing-keeper vacancy because the evidence on that point was incomplete.

For the disability discrimination claim, the tribunal held that dismissal was unfavourable treatment because of something arising in consequence of disability, namely the claimant's ill-health absence and incapacity to carry out the Works Delivery Manager role. It accepted that the respondent had a legitimate aim of supporting long-term sickness absence, facilitating return to work, and considering termination when absence could no longer reasonably be supported, and found dismissal proportionate because the claimant had time and support to find an alternative role and no suitable vacancy was found. On reasonable adjustments, the tribunal identified the relevant PCP as dismissing employees who cannot perform their substantive role and cannot be redeployed within a reasonable time, found that this placed the claimant at a substantial disadvantage, and held that the respondent knew or ought to have known of that disadvantage. It accepted that a ring-fenced suitability interview for the Thirsk Level Crossing Manager vacancy would have been a reasonable step, but concluded there was no real prospect that it would have avoided dismissal because the role was not suitable for him.

On the breach of contract issue, the tribunal held that the Redeployment Policy was not contractual and that the respondent's failure to follow it did not give rise to a contractual breach. No compensation or other monetary award was made because the claims were dismissed.