Mr Thomas Nelson v The Co-Operative Group Ltd — 2022

The claimant, an LGV driver, had been absent from work from November 2019 because of ill health, including a hernia for which surgery was awaited. The respondent accepted that he was disabled and that dismissal was unfavourable treatment because of his absence, which arose from disability. The tribunal accepted that the respondent had followed its absence management process carefully during the welfare meetings and that proposed office or Dekit duties were not reasonable alternatives in the circumstances.

The tribunal found the dismissal unfair because the respondent had not shown that it could not be expected to wait any longer. In particular, there was no evidence about the impact on the business of retaining the claimant pending surgery and recovery, no adequate medical investigation into when surgery might occur or the likely recovery period, and no explanation why dismissal was with pay in lieu of notice rather than with notice.

For the Section 15 Equality Act claim, the tribunal found that the respondent had not provided meaningful evidence of a specific legitimate aim or the impact of the claimant's continued employment on that aim, so it could not show dismissal was a proportionate means of achieving a legitimate aim. The direct disability discrimination claim failed because the tribunal found the reason for dismissal was long-term absence, not disability itself. The reasonable adjustments claim failed because the proposed adjustments were not found to be reasonable.