In person For the v Respondent — 2020

The claimant, a team member in the Whole Body department, developed an inguinal hernia in March 2019. The employer accepted that adjustments were needed and put several in place, including exemption from heavy lifting, extra unpaid breaks, and help from colleagues. The claimant asked for a picker and an assigned locker; the employer declined those requests, instead offering use of the cage or a training room for storage. Two occupational health reports were obtained, and the tribunal found the later report overstated the claimant's restrictions. On 22 April 2020 the claimant was dismissed at a capability meeting, although on 1 May 2020 the employer said the dismissal had been premature, reinstated him, and said the capability process would be paused pending further review. The claimant did not return to work, and on 3 August 2020 the employer treated him as having resigned.

The tribunal held that the claimant was disabled within s.6 EqA 2010. It found that the hernia was a long-term physical impairment and that restrictions on lifting, pushing a loaded trolley and bending were more than minor or trivial and affected normal day-to-day activities. The s.15 claim succeeded because the dismissal was unfavourable treatment arising from those disability-related restrictions, and the employer had not shown objective justification. The tribunal found that the adjustments already in place had been working, the lockdown pressure on the team did not create a real need to dismiss, and the detriment to the claimant was severe compared with the marginal benefit to the employer.

The reasonable adjustments claim under ss.20-21 EqA 2010 was dismissed. The tribunal held it was presented about six months late and that it was not just and equitable to extend time. It also found that, on the merits, the locker point was met by the alternative storage arrangements and the picker issue only marginally engaged substantial disadvantage. The unfair dismissal claim succeeded because the dismissal was not within the range of reasonable responses under s.98(4) ERA 1996 and the employer had acted before properly exploring the medical position further. The tribunal also made a Polkey finding of a 30% chance that a fair dismissal could have occurred within a few weeks if a proper capability process had been followed.

For remedy, the tribunal awarded £528 for loss of earnings on the discrimination claim and £8,500 for injury to feelings inclusive of interest. It awarded a reduced basic award of £1,040.85 for unfair dismissal, down from the full basic award of £1,146.50 by a 10% reduction because the claimant unreasonably refused the offer to return to work. The tribunal did not make a separate compensatory award for unfair dismissal to avoid double recovery.