Mr R S Driver v G&R Newcastle Ltd Heard: Remotely (by video link) — 2021

The tribunal found that Mr Driver had been employed by Tenniswood Removals from 15 August 2015 and that there was a relevant TUPE transfer to G&R Newcastle Ltd on or around 27 November 2017. It therefore held that he had continuity of employment from 15 August 2015 to 29 September 2019. On that basis, and because his dismissal was for redundancy, it held that he was entitled to a statutory redundancy payment and to six weeks' contractual notice, although he had only been paid one week.

On disability knowledge, the tribunal accepted that Mr Driver had a long-term physical impairment and found that the respondent did not have actual knowledge during the earlier part of 2019, but did have constructive knowledge by July 2019, or alternatively by August 2019. That finding was based on the prolonged bowel-related absence, the MED3 certificates, the attempted returns to work, the surgery in February 2019, and the respondent's own attempt to obtain medical records and ask for a GP confirmation of fitness for work. The tribunal found that a reasonable employer would have sought GP or occupational health advice rather than stopping at an unsuccessful attempt to obtain records, particularly given the continuing absence and the cost of the records being £80.

The tribunal held that the dismissal was unfavourable treatment because of something arising in consequence of disability, namely long-term sickness absence, and that the respondent's aims were legitimate but the dismissal was not proportionate. It also found unfair dismissal because the claimant was put into a pool of one, there was no meaningful consultation, no objective selection criteria were applied, and no percentage deduction should be made under Polkey. The claimant was found not to have contributed to his dismissal.

On reasonable adjustments, the tribunal held that the respondent should have obtained GP and/or occupational health reports and should have facilitated a phased return to work. It found that PCPs 1, 2 and 3 were capable of placing the claimant at a substantial disadvantage and that no steps were taken to avoid that disadvantage. The portable toilet proposal and the job-swap proposal failed, and PCP4, the requirement to attend work regularly and be able to drive a heavy goods vehicle, was not proved on the evidence. Remedy was left to a CVP hearing listed for 8 April 2021.