Mr K Rodgers First v Stevenage Borough Council — 2018

Mr Rodgers was employed by Stevenage Borough Council as an Assistant Grounds Maintenance Operative from 2005 until his employment ended on 14 February 2019. The Council accepted that he was disabled by reason of autism/Asperger's and carpal tunnel syndrome. He withdrew his harassment claim at the start of the hearing, and the tribunal recorded that claim as dismissed upon withdrawal. On the direct disability discrimination claim, the tribunal accepted that the Council had treated him less favourably by telling him on 24 January 2019 that no suitable alternative employment could be found, by dismissing him, and by not upholding his appeal, but it held that these acts were not because of disability.

The tribunal found that the dismissal and related treatment were driven by capability concerns arising from the claimant's inability to perform the substantive role for a sustained period and by the limitations identified in the risk assessment and medical evidence. It rejected the direct discrimination case, including the comparator case, because it considered that a hypothetical non-disabled comparator would have been treated the same way.

For the section 15 claim, the tribunal found that the dismissal, the failure to identify suitable alternative employment and the appeal outcome were unfavourable treatment because of something arising in consequence of disability, namely the effects of CTS and the wider limitations associated with autism. However, it accepted the Council's stated legitimate aim of employing staff able to carry out substantive duties and held that the steps taken, including repeated OH referrals, meetings, consideration of redeployment and the temporary part-time cleansing role, were proportionate. The section 15 claim was therefore dismissed.

The reasonable adjustments claim also failed. The tribunal accepted PCPs requiring work in the substantive role, full-time hours and compliance with the job description, but held that the suggested adjustments were not reasonable or would not have avoided the disadvantage: the claimant was already given temporary redeployment, further specialist OH input was not necessary, part-time working and rotating duties would not have solved the problem, and the Council had sufficiently explored redeployment. The unfair dismissal claim failed because capability was the reason for dismissal and the decision and procedure were within the range of reasonable responses; the remedy hearing was vacated.