Mrs S Berganska v Kerry Foods Limited Heard: Remotely, by Cloud Video Platform — 2021

Mrs S Berganska was employed by Kerry Foods Limited as a Production Line Leader at Burton on Trent from July 2016 until her dismissal with effect from 27 February 2019. The tribunal found that she had been absent for a prolonged period because of lumbar and pelvic pain and related symptoms, with occupational health reports in May, August 2018 and February 2019 consistently stating that she was not fit for work in any capacity at those times and that a return date was uncertain. The Respondent accepted that she was disabled and that it knew that to be the case.

On the reasonable adjustments complaint, the tribunal accepted that the Respondent had a PCP requiring employees to be present to perform their duties and held that this put the Claimant at a substantial disadvantage compared with non-disabled employees. The claim still failed because the tribunal was not satisfied that she had shown any reasonable step the Respondent could have taken and failed to take: there was no evidence that her substantive production-line role could have been adjusted so she could do it, and the tribunal accepted the Respondent’s evidence that there was no vacancy at Burton into which she could have been redeployed at the time of dismissal. The tribunal also declined to speculate about earlier redeployment possibilities because that was not how the case had been pleaded.

The section 15 claim succeeded. The tribunal accepted that dismissal was unfavourable treatment arising from disability, but held that the Respondent had not proved that dismissal was a proportionate means of achieving the legitimate aim of maintaining production with staff present at work. The tribunal found that the Respondent led very limited evidence about the impact of the Claimant’s absence, even though it accepted she had been away for a long time and that cover had been provided, and it considered that the February 2019 occupational health report, together with the Claimant’s own evidence at the meeting, showed further medical investigations were pending. In the tribunal’s view, it would have been less discriminatory to wait for those investigations and reassess the position before dismissing her.

The unfair dismissal complaint also succeeded. The tribunal held that the reason for dismissal was capability related to absence, so the dismissal fell within section 98(2) ERA 1996, but that the Respondent acted outside the range of reasonable responses under section 98(4). The tribunal criticised the absence of meaningful consultation, the fact that the occupational health report was not provided to the Claimant before the dismissal meeting, and the brevity of the meeting itself. It also found that the Respondent did not show that it could not reasonably have waited longer given the pending medical investigations and the limited evidence of practical impact on the business. Remedy was not determined at this hearing and was listed for a separate remedy hearing.