In person For the v Mr M Selwood - Counsel — 2023

The claimant was an Off Track Maintenance Technician whose disability was admitted: musculoskeletal symptoms and degenerative changes at C5/C6 and C8/C7. The respondent also accepted that he could not use power tools and that this arose in consequence of his disability. The tribunal further accepted that the respondent operated a PCP requiring Off Track Technicians to carry out work involving power tools, and that this put the claimant at a substantial disadvantage compared with non-disabled employees.

On the section 15 claim, the tribunal found that the 22 July 2019 removal of the claimant from Ben’s gang and the 4 October 2019 decision that he was not fit for the Technician role were unfavourable treatment. It accepted, however, that the respondent’s legitimate aims were preserving the health and safety of the claimant and his colleagues, ensuring employees could carry out their contracted roles, and allowing flexibility in the deployment of resources. Applying the section 15 authorities it cited, the tribunal held that the decisions were proportionate means of achieving those aims and therefore not discriminatory.

The tribunal also dismissed the complaint about the 1 November 2019 letter referring to the possibility of ill-health severance. It held that the letter followed the decision that the claimant was unfit for the substantive role and that, although the wording could have been improved, it was justified as a warning of possible outcomes and part of the wider redeployment process. The June 2019 failure to renew competencies was found not to be unfavourable at the time because the claimant did not know about it then and it had no immediate impact; by the time he learned of it, the PTS issue meant renewal could not yet be completed. The tribunal also rejected any argument that the 24 January 2020 redeployment to the track inspection operative role was a wrongful detriment; it found that this move maintained the claimant’s salary, gave him a role he could do in full, and was the appropriate long-term solution.

On the reasonable adjustments complaint, the tribunal rejected each adjustment proposed by the claimant. It found that creating a seasonal inspection role was not reasonable, that permanent allocation to lookout or site-warden duties was not sustainable because those roles rotate for safety reasons, and that rostering the gang around the claimant’s restrictions was not a long-term solution because the reduced-vegetation gang arrangement had already proved insufficient. It also rejected transfer to Tony’s gang, in part because of the evidence about their relationship and because the gang’s work was not materially different in a way that solved the restriction problem, and rejected transfer to Daniel’s knotweed gang because that too was not a year-round solution and did not remove the claimant’s practical restrictions. The claim was therefore dismissed in full and no remedy stage arose.