Mr G Plowright v Sky In-Home Services Ltd — 2019

Mr Plowright worked for Sky-in-Home Services Limited as a field engineer from 26 March 2007 until his summary dismissal on 25 May 2018. The tribunal found that on 17 February 2018 he breached safety procedures while working at height, but also accepted that he had been under significant personal and mental strain. It found that by 9 March 2018 the respondent knew he said he had been diagnosed with anxiety and depression, and that the OH report of 23 March 2018 recorded reduced concentration, poor sleep, low mood and loss of appetite, recommended that the conduct process be concluded as soon as feasible, and described him as unfit for work.

The tribunal held that the claimant had depression, that it had a substantial adverse effect on normal day-to-day activities, and that the effect was long-term. It found the symptoms had begun around December 2017, had fluctuated, and could well have lasted or recurred for at least 12 months. It also held that the respondent had constructive knowledge of the disability from 17 April 2018, when Peter Reynolds received the OH report, and that the respondent did not actively investigate the disability issue or seek clarification during the disciplinary process or appeal, despite the claimant raising the matter.

On discrimination arising from disability, the tribunal found that the dismissal was because of something arising in consequence of disability, namely the claimant's difficulties with concentration and memory, his not thinking straight, and his abrupt decline on the day in question. It accepted that health and safety was a legitimate aim, but held that dismissal was not a proportionate means of achieving that aim. The tribunal considered that a lesser sanction, such as a warning, was available and that the respondent's evidence did not justify dismissal in the particular circumstances.

On reasonable adjustments, the tribunal held that the application of the conduct policy to health and safety breaches was a PCP that placed the claimant at a substantial disadvantage and that the respondent knew or ought to have known this from 17 April 2018. It found a breach of the duty to make reasonable adjustments because the respondent treated the claimant's ill-health as mitigation only if he had previously told a manager, and did not properly consider adjustments. The separate argument about generic time frames in the conduct process failed because the tribunal was not persuaded that any generally applicable time frames PCP existed. The unfair dismissal claim also succeeded because, although conduct was the stated reason for dismissal, the decision was outside the range of reasonable responses as it was tainted by discrimination. The tribunal rejected Polkey and contributory fault reductions, and listed a separate hearing for compensation on 18 February 2020; no monetary award was made in this judgment.