Mr M Kerita v BMW (UK) Manufacturing Limited — 2020

The tribunal found that the claimant had a disability from 25 November 2020 because his back pain had a substantial and long-term adverse effect on day-to-day activities. It found that from 28 June 2021 the respondent knew that the claimant was disabled. The respondent applied requirements to perform particular cockpit roles and to rotate across a minimum number of roles, which substantially disadvantaged the claimant, and failed to provide suitable adjusted duties from 28 June 2021 to 15 March 2023.

The tribunal found that the January 2022 attendance warning was issued partly because of sickness absence for back pain, which arose in consequence of the claimant's disability. Although the respondent relied on legitimate aims including managing sickness absence, issuing the warning was not a proportionate means of achieving those aims because suitable adjusted duties had not been provided.

The tribunal found that the claimant's dismissal was direct disability discrimination. It found facts from which it could infer that the dismissal was because of the claimant's back condition, including assumptions made about his walking ability and the use of covert surveillance while the respondent's physiotherapists accepted he was unfit for work. The respondent did not satisfy the tribunal that dismissal was in no sense because of his back condition.

For unfair dismissal, the tribunal found that the respondent believed the claimant had fraudulently claimed sick pay, but did not have reasonable grounds for that belief and had not carried out as much investigation as was reasonable. The claimant was not receiving sick pay at the time of surveillance and there was no evidence he was fit for work. For wrongful dismissal, the tribunal found the claimant had not committed misconduct amounting to a fundamental breach justifying summary dismissal. Remedy was left to a separate hearing.