Mr S Myers v Hilton UK Hotels Limited — 2022

Mr Myers joined Hilton in 2015 as a Food and Beverage Assistant and moved onto a permanent contract in 2017. After a workplace accident on 13 June 2019 he fractured his hip, underwent a total hip replacement the next day, and remained off sick. Occupational health in January 2020 said he could return within two weeks if a role was available that did not involve moderate or heavy manual tasks. At the 10 March 2020 return-to-work meeting, he said he could not return to his Food and Beverage role and could only do Business Centre work. Ms MacGill explained that the hotel did not have a separate Business Centre Coordinator role and said a trial in the Business Centre could be explored, but the claimant declined that offer.

The hotel later closed in the first Covid-19 lockdown and, in July and August 2020, began redundancy consultation because occupancy and revenue had fallen sharply. The Tribunal accepted that the respondent needed fewer employees to carry out work of the kind for which the claimant was employed. The claimant was placed in the Food and Beverage pool, the pool was consulted on collectively, and the selection matrix used attendance, disciplinary record, work performance and skills. Two managers scored the claimant independently, HR audited the scores, and the Tribunal found the selection pool, criteria and individual consultation to be within the range of reasonable responses. The claimant was also considered for alternative work, but the Tribunal found the steps taken were reasonable in the context of a genuine headcount reduction.

On unfair dismissal, the Tribunal held that the sole reason for dismissal was redundancy and not any perceived disability-related performance issue. It found that the claimant was adequately warned and consulted, that the respondent had a reasonable approach to casual workers in the pool, and that the use of pre-injury performance for scoring was reasonable. The claimant was therefore not unfairly dismissed. The Tribunal also recorded that any concern about the claimant not receiving the scoring matrix before the second consultation was cured because he had the scores before the appeal hearing.

On disability claims, the respondent conceded that the claimant had a disability arising from his hip replacement and that depression also amounted to a disability. The Tribunal found no actual or constructive knowledge of depression at the relevant time. For section 15 EQA, it accepted that fatigue and reduced performance arose in consequence of disability, but found that they played no part in the redundancy selection: the claimant received full marks for attendance and disciplinary record, and his performance and skills were assessed on a pre-injury period. For reasonable adjustments, the Tribunal accepted that working at pace and heavy/manual tasks were PCPs that placed him at a substantial disadvantage, but held that the duty did not bite before the redundancy process overtook the return-to-work discussion and that the proposed adjustments did not establish a breach. The direct disability discrimination claim had already been withdrawn at a preliminary hearing.