Mr D Smith v Warrens Warehousing & Distribution (Midlands) Limited — 2022

Mr Smith was an LGV driver who had been absent from work from late 2018 after right wrist and ankle injuries. The tribunal found that he was a disabled person within s.6 Equality Act 2010 at all material times because the wrist injury had a substantial and long-term adverse effect on day-to-day activities, including food preparation and driving a car. It was less persuaded about the ankle injury alone, but concluded the wrist injury was sufficient. The tribunal accepted that his evidence was confused, but did not find him dishonest.

The unfair dismissal claim failed. The tribunal found that the dismissal in November 2020 was for capability, namely extended sickness absence and the lack of medical indication that he could return safely to a safety-critical driving role. His separate argument that he had asserted a statutory right under s.104 ERA 1996 failed because he had never made a compliant flexible working request under s.80F ERA 1996. The tribunal accepted that the respondent had managed his absence badly for a long period before May 2020, but held that by the time of dismissal it had undertaken consultation, occupational health referrals and GP enquiries, and was entitled to require medical confirmation before allowing a return.

The reasonable adjustments claim under ss.20-21 EqA 2010 also failed. Although the tribunal considered that some of the adjustments proposed in evidence, including part-time hours, short local routes, a buddy or co-driver, and steering aids or gloves, might have been reasonable in principle, it held that the duty had not been triggered on the facts because Mr Smith remained certified unfit for work and had not obtained clear medical sign-off that he was fit to return. The tribunal accepted that there had been an impasse over return to work, but held that the respondent was entitled to wait for medical confirmation before considering the detail of adjustments.

The s.15 EqA 2010 claim failed as well. The tribunal accepted that dismissal was unfavourable treatment arising from disability-related absence and that the respondent relied on the legitimate aims of protecting health and safety and managing sickness absence. It held that, in the circumstances of a safety-critical HGV driving role and in the absence of firm medical evidence that Mr Smith could return safely, dismissal was a proportionate means of achieving those aims. No remedy hearing was required because all claims were dismissed.