Ms C Step-Marsden (Counsel). For the v Mr M Wakelin (In-House Solicitor). — 2022

The tribunal first refused to allow the claimant to advance a late case that he had been disabled from 2011, because that point had not been pleaded and the respondent would have been disadvantaged by the late material. It confined the disability case to the pleaded position that disability began after the claimant's 2019 operation. A reasonable adjustments claim had earlier been clarified but was later withdrawn, so the only live claim was discrimination arising from disability under s.15 Equality Act 2010.

On the evidence, the tribunal found that the claimant had a serious back condition, underwent major spinal surgery in July 2019, and remained significantly affected afterwards. It relied on the consultant's letters, the occupational health report, and the claimant's own evidence to conclude that by March 2020 he was still in substantial pain, had marked mobility restrictions, and was not fit to return to HGV driving. It also found that the claimant was disabled at the date of dismissal and that the respondent knew, or at least ought reasonably to have known, that he had a disability, including from the claimant's September 2019 email referring to a disability form and from what was discussed at the March 2020 capability meeting.

The tribunal held that the claimant's dismissal on 31 March 2020 for incapability on ill health grounds was unfavourable treatment because of something arising in consequence of his disability. The respondent accepted the treatment was unfavourable, but it did not satisfy the tribunal that dismissal at that stage was a proportionate means of achieving a legitimate aim. The respondent relied on alleged expense, disruption and uncertainty caused by the claimant's absence, but the tribunal found there was no documentary support for the claimed costs, noted that he was not receiving sick pay when dismissed, and considered that there was no up-to-date occupational health or consultant evidence before the decision was taken. Remedy was not assessed in this judgment and was left to a separate hearing.