Mr. S Sims v Pektron Group Limited — 2022

Mr Sims worked as a cleaner for Pektron Group Limited from 22 January 2007 until his dismissal with effect from 12 March 2021. The tribunal accepted that he had osteoarthritis, that it caused repeated periods of sickness absence, and that by the end of the employment the Respondent had obtained GP information and an occupational health report. It also found that the Respondent had no satisfactory managing attendance or capability policy, but nevertheless had held meetings with Mr Sims, discussed his condition and prognosis, and considered adjustments and alternative work.

On the unfair dismissal claim, the tribunal found that the reason for dismissal was capability arising from ill health, not a refusal to change hours. It accepted that the Respondent had consulted with Mr Sims, considered medical evidence, implemented a phased return and light duties, and thought about redeployment. The tribunal found that a production operative role would not have been a suitable sedentary alternative because it could involve standing and walking for long periods and could not be guaranteed to remain seated work. It also held that it was not unreasonable to dismiss without waiting for surgery, because there was no surgery date and recovery was uncertain. Although the tribunal criticised the lack of a final meeting before the dismissal letter was sent, it found the dismissal fair and dismissed the unfair dismissal claim.

On the discrimination arising from disability claim, the tribunal held that dismissal was unfavourable treatment arising from disability-related sickness absence and inability to perform the cleaner role. It accepted that the Respondent's legitimate aims were to ensure the cleaning role was performed and that the work could not be absorbed by other staff. It then concluded that dismissal was a proportionate means of achieving those aims, because the Claimant could not return to his role within a reasonable time and the other adjustments and alternatives explored had not enabled him to provide effective service. The reasonable adjustments complaint also failed: the tribunal found that the Respondent had already implemented the occupational health recommendations that were reasonable, including reduced duties and a phased return, and that the further steps sought by the Claimant, including redeployment to a production operative role or delaying dismissal until after surgery, would not have removed the disadvantage or were not reasonable in the circumstances.