Mr H Pintovega v London Borough of Camden — 2019

Mr Pintovega had worked for the London Borough of Camden since 12 December 2004 as a caretaker. After long-running back and related health problems, occupational health recommended on 9 February 2016 that he was not fit for the caretaker role but could be redeployed to office-based work. He was placed in a redeployment pool, worked for a period in Camden Estates, and then started a 4-week trial as a Business Support Officer on 5 June 2017. He was told on 13 July 2017 that he would not be confirmed in that role, was then taken through a further review meeting on 27 July 2017, and his employment ended on 30 October 2017. His appeal was later unsuccessful, and a remedy hearing was to be listed for the unfair dismissal finding.

The tribunal found that the true reason for dismissal was capability, specifically ill-health capability, within s.98(2)(a) ERA 1996. It nevertheless held the dismissal unfair under s.98(4) because the Respondent acted unreasonably in the way it handled the case. The tribunal was concerned about confusion over which internal procedure was being applied, the lack of reliable evidence about Ms Diana Small's supervision and feedback during the Business Support Officer trial, the absence of contemporaneous records supporting the reasons for failing the trial, and the way the decision to dismiss was reached and later handled on appeal.

The disability discrimination claims were dismissed. The tribunal held that the claims were presented out of time under s.123 Equality Act 2010, that there was no continuing act extending the limitation period, and that it was not just and equitable to extend time. On the merits, the s.19 indirect discrimination claim failed because the 4-week trial period did not place disabled employees at a particular disadvantage compared with redeployed non-disabled staff and was a proportionate means of achieving a legitimate aim. The s.15 claim failed because the non-confirmation and dismissal were not found to be because of something arising in consequence of disability. The s.20 reasonable adjustments claim also failed because the tribunal found the Respondent had taken reasonable steps to avoid the disadvantage arising from both the caretaker role and the redeployment trial.