Mr D Smith v Jayar Components Ltd — 2022

Mr D Smith worked for Jayar Components Ltd from 2009 and had long-standing medical conditions including a splenectomy, asthma and later atrial fibrillation. The tribunal found that he was disabled at all material times and that the respondent knew of the impairments that made him disabled. During the Covid-19 period he shielded, was furloughed, and later disputed the respondent's instruction that he should return to work at Parkwood/Maidstone, where the respondent proposed an upstairs office arrangement and then treated his continued absence as unauthorised.

The unfair dismissal claim succeeded. Although the respondent said the dismissal was for gross misconduct in refusing to return to work on 24 August 2020, the tribunal found that earlier concerns about sales performance at Tunbridge Wells remained a material part of the dismissal decision, so the respondent had not proved that conduct was the principal reason. In any event, the tribunal held that the process was unfair: it described the disciplinary process as a sham, found the decision had effectively been pre-ordained, and concluded that dismissal was outside the range of reasonable responses.

The section 15 disability discrimination claim also succeeded. The tribunal accepted that the dismissal was unfavourable treatment because of something arising in consequence of the claimant's disability, namely his refusal to attend work while clinically extremely vulnerable. The respondent did not establish proportionate justification, because it did not properly engage with his particular medical vulnerability, his GP's note referring to Covid-secure work or home working, or the possibility of lesser measures before moving to dismissal.

The reasonable adjustments claim under sections 20 to 21 likewise succeeded. The tribunal found that the requirement to work in person at a branch office was a provision, criterion or practice that placed the claimant at a substantial disadvantage compared with non-disabled employees. It held that a temporary home-working arrangement using the respondent's systems could have been a reasonable adjustment, and that the respondent had not given adequate consideration to such a step.

Remedy was adjourned to a later hearing. The tribunal said it did not have enough evidence at liability stage to determine any Polkey reduction, and left compensation, injury to feelings, mitigation, reinstatement or re-engagement, and any ACAS uplift or reduction for the remedy hearing.