Mr S Mughal v Interserve Group Ltd — 2020

The Tribunal found that the Claimant had a physical respiratory impairment, initially diagnosed as asthma and later with a supplementary diagnosis of COPD, but that he had not proved a substantial adverse effect on normal day-to-day activities. The disability discrimination claims were therefore dismissed because the statutory definition of disability was not met.

On unfair dismissal, the Tribunal accepted that conduct was the genuine reason for dismissal and that the Respondent had evidence supporting a belief in misconduct, including Timegate records, CCTV analysis and statements from security guards. However, the Tribunal found that the investigation showed an assumption of guilt and that it was procedurally unfair to proceed with the disciplinary hearing on 29 August 2018 in the Claimant's absence when he had provided medical evidence and had not reached the point of persistent inability to attend.

The appeal was found to have been handled openly and fairly, but it did not cure the unfairness because the Claimant had only one fair hearing rather than the two-stage process envisaged by the ACAS Code and fair industrial practice. The Tribunal found that, had a fair procedure been followed, the hearing could and would have taken place by 19 September 2018 and the Claimant would then have been fairly summarily dismissed for gross misconduct. The basic award was reduced by 100%, with a compensatory award limited to three weeks' gross pay.