Mr S Crawford (Counsel) For the v Respondent — 2021

Mr O Maruf brought two linked proceedings against Network Rail Infrastructure Limited. He had been absent from work from 26 May 2017, initially in relation to a dispute about the banding and role he said he was performing. The tribunal found that he did not satisfy the Equality Act definition of disability until 31 July 2018, when an Occupational Health report first suggested that his anxiety and depression were likely to amount to a disability. By June 2019, he had been absent for about two years and the latest Occupational Health evidence still said he was unfit for work with no adjustment identified that would enable a return.

On direct disability discrimination and discrimination arising from disability, the tribunal found that the ill-health severance meeting on 5 September 2018 and the four-week redeployment period were not imposed because of disability. It held that the respondent's reason was the claimant's long absence and lack of any foreseeable return date, and that a non-disabled employee in the same position would have been treated the same. The tribunal also held that, even if the s.15 treatment had been linked to disability, dismissal would have been a proportionate means of achieving a legitimate aim because the claimant had been absent for a prolonged period and the respondent had already tried to explore alternatives.

The reasonable adjustments claim failed because the tribunal held that the alleged PCPs either were not PCPs within the meaning explained in Ishola v Transport for London, or did not place the claimant at a substantial disadvantage in the circumstances found. It accepted that Network Rail and its HR teams used the redeployment register, welfare meetings, personal email contact and discussion of vacancies, but concluded that the claimant was not fit to work and had no realistic return date, so the duty was not triggered on the authorities cited, including The Home Office v Collins, NCH Scotland v McHugh and Doran v Department for Work and Pensions.

The harassment and victimisation claims also failed. The tribunal held that holding the ill-health severance meeting and setting an initial four-week redeployment period did not amount to unwanted conduct contrary to s.26, and that the grievance and appeal outcomes were reasoned decisions rather than detriments imposed because the claimant had made protected acts.

The unfair dismissal claim failed. The tribunal found that the dismissal on 13 June 2019 was for capability within s.98(2)(a) ERA 1996, that the respondent genuinely believed the claimant could not return to work, that it had consulted him, considered redeployment and followed a fair procedure, and that dismissal fell within the band of reasonable responses. The judgment records no tribunal monetary award; the £46,999.63 figure referred to in the evidence was the ill-health severance quotation, not a compensation award.