Mr S P Delmonaco v North West Air Ambulance Charity — 2020

Mr Delmonaco suffered from Marfan syndrome, which the respondent accepted was a disability. He was recruited in February 2019 as a retail assistant at the Blackburn At Home store. The tribunal found that he had successfully carried out charity retail work before joining the respondent, that he did not give the respondent notice at interview of any need for adjustments, and that he worked without incident through March and the first half of April 2019.

On 17 April 2019 he suffered a spontaneous pneumothorax on his way to work. The respondent referred him to occupational health, and a report from Ms Leek recommended restrictions including no lifting above 6kg, no lone working, and no overtime beyond 25 hours per week. The tribunal criticised the superficiality of that assessment and found that the respondent did not take further steps, such as obtaining medical records, seeking input from treating clinicians, or arranging a more detailed specialist assessment, before deciding that the claimant could not continue in the role.

The section 15 claim succeeded because the tribunal found that the dismissal was caused by the respondent's perception that the claimant's ability to perform the role was permanently limited in those three ways. The tribunal accepted that the respondent had legitimate aims of ensuring safe work and preventing the shop being left unattended and unsecured, but held that dismissal was not a proportionate means of achieving those aims. It found that further investigation and possible adjustments, including use of a trolley and temporary or alternative cover for overtime, should have been considered before dismissal.

The section 13 direct discrimination claim failed because, applying the hypothetical comparator analysis, the tribunal concluded that the respondent would have dismissed a non-disabled employee whom it believed was subject to the same 6kg lifting limit, no lone-working restriction, and no overtime beyond 25 hours. The section 19 indirect discrimination claim was withdrawn. The sections 20-21 reasonable adjustments claim failed because the tribunal found that no duty to make reasonable adjustments arose before 17 April 2019, that no adjustments were required during the absence period, and that the adjustments actually made on return to work fully mitigated the disadvantage during the short period before dismissal. Compensation was not assessed at this hearing and was listed for a remedy hearing on 18 November 2020.