Mr S Dodd v Explore Transport Limited — 2022

The claimant, Mr S Dodd, was employed as an LGV driver by Explore Transport Ltd and the respondent accepted that he had Type II diabetes and was a disabled person for Equality Act purposes. The tribunal found that he disclosed his diabetes to Mr Jenkins shortly after starting work, but when asked whether he needed any adjustments he said that he did not. It also found that he did not disclose any issue with incontinence or urgent urination in his pre-employment forms, and there was no record in his medical records of treatment or complaints about incontinence over the 14 years since diagnosis. The section 19 indirect discrimination complaint was withdrawn at the start of the hearing.

The dismissal arose from the events of 28 April 2020 at Select Plant Hire's Wincham yard. The tribunal found that the claimant had opportunities to use toilets before reaching the yard, including at Worksop, Woodhead and Wincham, and that he waited about 20 minutes in his cab after arriving, saying he was "busting for a wee", before getting out and urinating in the open yard. Mr Griffiths complained to the respondent, Mr Jenkins investigated, and the respondent concluded that the claimant had committed gross misconduct and failed his probation. The claimant appealed, producing a GP letter stating that diabetes medication could increase urinary frequency and urgency, but the appeal was rejected.

On the section 15 claim, the tribunal accepted that the claimant was dismissed and that this was unfavourable treatment, but it found that the reason was misconduct rather than something arising in consequence of disability. Applying the causation approach in Basildon and Thurrock NHS Trust v Weerasinghe, Sheikholeslami and Pnaiser, it held that Mr Jenkins believed the claimant had chosen to urinate in the yard despite available toilet options and that the claimant's diabetes or medication was not the operative cause of the dismissal. The tribunal also accepted that the respondent had legitimate aims in protecting its reputation, customer relationships, workforce trust, and health and safety, but the claim failed because the required causal link was not made out.

On the reasonable adjustments claim, the tribunal held that the respondent knew the claimant had diabetes but did not know of the alleged substantial disadvantage, namely an uncontrollable need to urinate immediately. It found that the respondent had asked whether any adjustments were needed and the claimant said no, and that it was not obvious that a person with Type II diabetes would have incontinence issues. Applying the Rowan and Latif reasoning, the tribunal held that the identified PCPs did not place the claimant at a substantial disadvantage because he could use toilets and could ask where they were, and that suggested adjustments such as following the disciplinary policy, treating involuntary urination differently, or imposing a lesser sanction would not have addressed any proven disadvantage. Both disability discrimination claims were dismissed.