Mr A Tuffley v Cavaghan and Gray Limited — 2019

The claimant had been employed by the respondent since 2 December 1996 and accepted that he had a back condition amounting to a disability. After earlier adjustments and a move to janitorial duties from September 2015, the respondent began investigating him following an October 2017 whistleblowing report about gambling and loan sharking in the canteen. Michael Wilkinson reviewed CCTV over four weeks, interviewed the claimant and other employees, and concluded that the claimant had spent substantial periods of working time in the canteen taking extended breaks. After a disciplinary hearing on 5 February 2018, Malcolm Turner dismissed him for gross misconduct, and Stuart Turnbull rejected the appeal on 6 March 2018.

On the disability discrimination claims, the tribunal held that the claimant had not proved that his long periods in the canteen arose in consequence of his disability or that he medically needed to sit there for extended periods to relieve his back symptoms. It accepted Ruth Carswell’s occupational health report of 7 December 2017, which said that sitting for long periods was not advised for people with back pain and that keeping mobile was preferable. The tribunal found no supporting medical evidence for the claimant’s case and no reliable evidence that any previous manager had authorised the claimed arrangement as a disability-related adjustment. It therefore dismissed the s.15 discrimination arising from disability claim and the reasonable adjustments claim, and it also dismissed the later direct discrimination allegation as unsupported.

On unfair dismissal, the tribunal accepted that the reason for dismissal was conduct and applied the Burchell approach and the s.98(4) ERA 1996 band of reasonable responses test. It found Michael Wilkinson’s investigation reasonable because he reviewed the CCTV, documented the time spent in the canteen, held interviews, and produced an investigation report with appendices. The tribunal held that the respondent was entitled to reject the explanation that the breaks were a disability-related adjustment, because that explanation was not supported by the occupational health or other records and the claimant could not identify who had allegedly authorised it or when. It also rejected the consistency argument, noting that the respondent distinguished between employees according to the seriousness of their conduct and that one other employee was reinstated on appeal because of different circumstances, including mental health issues.