Mr Nicholas Toms (Counsel) For the v Respondent — 2023

The tribunal found that the claimant had a disability within section 6 Equality Act 2010 in relation to degeneration in his right knee at the relevant time. It accepted that he had bone-on-bone medial compartment arthritis, varus deformity and bony collapse, that the adverse effects on standing and walking were more than minor or trivial, and that there was a real possibility the effects would last more than 12 months and recur. The tribunal also found that the respondent knew, or could reasonably have been expected to know, of the disability by March 2021 from occupational health reports and later communications with the claimant.

On reasonable adjustments, the tribunal identified the requirement to stand at the gateline and the sick pay policy as PCPs, and found the standing requirement placed the claimant at a substantial disadvantage because it caused pain and difficulty working. It held that the respondent failed to make a reasonable adjustment by not providing a stool, perch bench or other means of resting his knee from the end of July 2021 until the claim was presented on 11 May 2022. The tribunal found the respondent did not adequately follow occupational health advice, did not properly engage the claimant or Network Rail, and could have implemented a temporary measure. The judgment did not separately determine the sick-pay point under the reasonable-adjustments list issue, treating that complaint under section 15 instead.

On discrimination arising from disability, the tribunal found that the claimant suffered unfavourable treatment when his pay reduced to half pay from 3 December 2021. It held that the relevant 'something' was the decision to place him on sick leave on 23 April 2021, that this arose in consequence of his disability, and that the respondent had not shown the treatment to be proportionate. The tribunal accepted that health and safety, Network Rail compliance and the sick pay policy were capable of being legitimate aims, but found the sick-leave decision was erroneous, unsupported by adequate evidence, and not justified in the circumstances. The claimant was placed on sick leave against occupational health advice and the tribunal found the respondent had not done enough before requiring him to be off work.

The tribunal awarded £16,737.04 in total. That comprised £2,598.35 loss of earnings, £13,000 for injury to feelings, £166.29 interest on loss of earnings, and £972.40 interest on the injury-to-feelings award. It did not award loss of overtime, finding on the balance of probabilities that the claimant would not have done overtime even if the adjustments had been made.