Ms G Churchhouse of Counsel For the v Respondent — 2021

The Tribunal heard the case remotely and confined the hearing to the agreed liability issues, declining to revisit matters already determined in earlier proceedings between the parties. It preferred the Respondent's witnesses where their evidence conflicted with the Claimant's, and it treated the Claimant's long sickness absence, repeated return-to-work meetings, occupational health assessments, and the sickness capability process as the central factual background.

On the disability discrimination claim under section 13 EqA, the Tribunal rejected the Claimant's comparators and found that his circumstances were materially different from other firefighters on light duties. It held that the decision to progress to stage 3, the dismissal on 21 June 2018, and the rejection of the appeal on 3 October 2018 were not shown to be less favourable treatment because of disability. The Tribunal also found that a hypothetical non-disabled comparator with the same medical history and lack of cooperation would have been treated in the same way.

On section 15 EqA, the Tribunal found that the dismissal and appeal decision were not because of disability or because of something arising in consequence of disability. It held that the Respondent's concern was the Claimant's ability to carry out operational firefighting, the medical evidence from occupational health was the most reliable evidence before it, and the Claimant had not taken the treatment steps identified as relevant to recovery, including EMDR. The Tribunal also found that, in any event, the dismissal was justified as a proportionate means of achieving the legitimate aim of ensuring firefighters were fit for their duties and reducing safety risk.

On reasonable adjustments, the Tribunal accepted that requiring return-to-work meetings with the designated line manager was a PCP, but it held that changing the Claimant's line manager was not a reasonable adjustment in the circumstances. It relied on the need for continuity in long-term sickness management, the fact that the Claimant had already had several line managers, and its finding that Mr McKenzie had done nothing warranting replacement. The harassment claim based on events on 13 September 2017 was rejected on the facts, and the Tribunal also said those allegations were out of time with no basis to extend time.

On victimisation, the Tribunal accepted that earlier tribunal claims were protected acts and accepted the detriments relied on, including the refusal to assign another Station Manager, dismissal, and the appeal outcome. It nevertheless found that neither Mr Jennings nor Mr Ellis acted because of protected acts, and that the decisions were made for reasons connected with the sickness capability process rather than retaliation. On unfair dismissal, the Tribunal held that the reason for dismissal was capability in the form of ill health, that the Respondent had followed its attendance policy and investigated the Claimant's health as far as he allowed, and that dismissal was fair under section 98(4) ERA 1996. As the hearing was liability only and all claims were dismissed, no award was made.