Mr J Constable, Friend For the v Respondent — 2019

The tribunal dealt with two substantive claims after the claimant’s arrears of pay, notice pay and holiday pay claims had been withdrawn before the hearing. It found that the claimant was disabled within s.6 Equality Act 2010 because of painful and/or reduced use of his left leg and foot with consequential back pain, and that the respondent had actual and constructive knowledge of that disability from occupational health material and the management record. The tribunal also extended time for the disability claim on a just and equitable basis.

The only discrimination issue was a failure to make reasonable adjustments in relation to heavy lifting and cleaning. The tribunal accepted that the claimant had some mobility limitations, but found that the respondent had provided practical support, including a helper and other equipment when required. It rejected the claimant’s case that there had been a failure to make the reasonable adjustment identified in the list of issues, and dismissed the disability discrimination claim.

On unfair dismissal, the tribunal found that the reason for dismissal was some other substantial reason: the respondent relied on health and safety advice to exclude the claimant from the Sunbury site after the 24 October 2018 incident with Resident A, and then dismissed him when relocation to another site could not be agreed. It accepted that the claimant had reported repeated abuse and threatening behaviour by Resident A over a number of years, including racist language, but found that the respondent had not reasonably investigated that history or carried out any balanced risk assessment.

The tribunal held that the dismissal was unfair under s.98(4) ERA 1996 because the respondent did not make a reasonable inquiry, did not consult the claimant properly about exclusion and relocation, and did not engage in an open-minded balancing exercise before deciding to dismiss. It also found the invitation to the disciplinary hearing was misleading in the circumstances, because it suggested the disciplinary outcome would determine whether the claimant could return to Sunbury, when the exclusion from that site had already been treated as fixed. Remedy, including Polkey and contribution, was left to a separate hearing.