Mr W Rogerson v Busways Travel Services Limited — 2019

Mr Rogerson had been employed as a bus driver since 1989. In April 2019, after a period of sickness absence, Mr Todd placed him on 12 weeks' notice of termination under the Respondent's attendance procedure. The Tribunal found that the notice used in April 2019 was not an irrevocable dismissal in practice: by 1 July 2019, when occupational health confirmed him fit to work and he returned to driving duties, the parties had by their conduct agreed that the notice had been withdrawn and that his employment would continue if he returned fit for work.

The Tribunal found that the later letter of 26 July 2019 was not merely a confirmation of an earlier dismissal but was, in effect, a fresh termination. Because the earlier notice had been withdrawn, the Respondent was in breach of contract in ending employment without lawful notice. The wrongful dismissal complaint therefore succeeded.

On unfair dismissal, the Tribunal accepted that the principal reason for dismissal was capability/ill health linked to the claimant's absence and the Respondent's concern that he might remain absent because of obstructive sleep apnoea. It held that issuing notice on 18 April 2019 was within the band of reasonable responses, but that the actual dismissal on 26 July 2019 was unfair because a reasonable employer would have obtained further specialist medical evidence, discussed the position with the claimant, and considered alternative duties or other employment before dismissing.

On disability, the Tribunal found that Mr Rogerson was a disabled person within the meaning of section 6 Equality Act 2010 from about mid-April 2019. It held that obstructive sleep apnoea had a substantial and long-term adverse effect on normal day-to-day activities, including sleeping, walking, concentration and driving, and that the Respondent could not reasonably have been expected to know he was disabled until 11 July 2019, when the diagnosis was communicated and the significance of the condition became clear.

The section 15 Equality Act claim succeeded because the dismissal was treated as unfavourable treatment because of something arising in consequence of disability, namely the claimant's absence from work after diagnosis and the anticipated continued absence. The Respondent accepted the legitimate aim of maintaining a reliable bus service, but the Tribunal found there was no evidence sufficient to show proportionality: it had no evidence on the operational impact of retaining the claimant, the cost of alternatives, or why a short further period to assess treatment and prognosis would have been unreasonable.

The reasonable adjustments claim also succeeded. The Tribunal identified the relevant PCP as the requirement for consistent attendance to perform the duties of a bus driver, and held that this placed the claimant at a substantial disadvantage compared with non-disabled drivers because the diagnosis of obstructive sleep apnoea meant he could not drive until medically cleared. The Tribunal found that it would have been reasonable to delay dismissal, allow treatment time to take effect, and seek further medical advice before deciding whether to terminate employment. Remedy was not decided in this judgment; the Tribunal directed that a separate remedy hearing would be needed, including consideration of financial loss, injury to feelings, and any Polkey or Chagger-type reduction.