Mr Z Farooqi v East London Bus & Coach Company Ltd — 2022

Mr Z Farooqi had worked for East London Bus & Coach Company Limited as a bus driver since November 2015. After he suffered a stroke on 30 January 2020, he was off work on sick leave. The DVLA revoked his PCV licence on 11 June 2020 for 12 months after the stroke. Occupational health on 14 July 2020 recorded that, apart from fatigue, he had made a good recovery and should be able to do duties that did not require Group 2 entitlement, with possible adjustments for reduced stamina.

At the meeting on 7 August 2020, Mr White dismissed the claimant on medical grounds, and the appeal heard by Mrs Hannan on 24 August 2020 upheld that decision. The tribunal found that the principal reason for dismissal was the claimant's state of health, with the licence revocation a subsidiary reason. It held that a reasonable employer would not have dismissed on medical grounds because the claimant's health had significantly improved, the only remaining symptom was fatigue, there was no medical evidence that his condition could well worsen or that he might suffer another stroke, and the occupational health evidence indicated that he was fit to work subject to adjustments.

The tribunal rejected the argument that the claimant should have been offered the Resourcing Clerk/Administrator role or the General Hand role. It found that the administrator role required experience and qualifications the claimant did not have, and that the General Hand role required a PCV licence because its main function was moving buses. On unfair dismissal, the tribunal held the dismissal was substantively unfair, but not procedurally unfair, and noted that any compensatory award would need a remedy hearing. It also found that, if acting reasonably, the respondent might still have dismissed later because the licence restriction was likely to continue until at least the end of January 2021, although there was a 30% chance it would have delayed dismissal.

On the disability discrimination issues, the tribunal held that Mr Farooqi was not a disabled person on 7 August 2020. It found that the remaining fatigue did not have a substantial adverse effect on normal day-to-day activities, that the medication point was not proved on the evidence, and that the stroke effects were not shown to be long-term or likely to recur. Because disability was not established, the claims of failure to make reasonable adjustments and discrimination arising from disability failed. The tribunal nevertheless said that, if disability had been established, it would have rejected the reasonable adjustments complaint but would have upheld the section 15 claim because dismissal was not a proportionate means of achieving the respondent's stated aim. In the proportionality analysis, it referred to estimated costs of about £225-£275 per month for retaining the claimant, and to the respondent's hypothetical figures of £3,300 per driver per year and £33,000 for ten drivers, but treated the ten-driver scenario as speculative.