In person For the v Respondent — 2020

The claimant worked for EFS from 2006 as a Loan Administrator and was absent from September 2017 with back pain, with one fit note in November 2017 also referring to fibromyalgia. Her employment transferred to IBM UK on 1 February 2018 under TUPE, and the respondent’s plan was to move the former EFS work to delivery centres in India and Germany.

The tribunal found that a redundancy situation existed because all 31 UK EFS roles were transferring offshore. It held that the collective consultation from April to July 2018 and the later individual consultation were thorough and reasonable, that the respondent made extensive redeployment searches, and that there was no selection exercise because all UK roles were at risk. The dismissal on 1 January 2019 was therefore by reason of redundancy and was fair under s.98(4) ERA 1996. The TUPE automatic unfair dismissal complaint failed because the transfer itself was not the reason for dismissal.

On disability, the respondent conceded that the claimant was disabled by reason of back pain and fibromyalgia. The tribunal nevertheless found that the respondent could reasonably have been expected to know this by 21 May 2018 from the Optima occupational health report, which described the impact on her normal daily activities.

The s.15 complaint relating to dismissal failed because the tribunal found that the claimant was given repeated opportunities to seek redeployment and that no suitable alternative employment existed. The tribunal also found that the respondent’s treatment in the redundancy process was not unfavourable treatment for the purposes of the claim.

The complaints about the Disability Plan failed on substance. The tribunal found that Ms Blood correctly applied the plan’s strict requirement for total and permanent disability and that the claimant did not meet those criteria in September 2018. It held that the plan’s eligibility rules pursued the legitimate aim of managing access to a generous employer-funded benefit for a defined category of employees and were a proportionate means of doing so.

The Disability Plan complaints, including the indirect discrimination complaint, were also out of time. The tribunal refused to extend time, held that it was not just and equitable to do so, and struck those complaints out; it also said that, even if it had had jurisdiction, they would have failed. As all complaints were unsuccessful, the listed remedy hearing was vacated.