Mr P Facey v And KAB Seating Limited Held by CVP on 12 to 15 April, 20, 21 July and, in Chambers, 9 September 2021 — 2021

The claimant, Mr P Facey, was a long-serving General Operator who had been on the respondent's light duties register and had a history of wrist, elbow and related problems. The tribunal accepted that the respondent knew he was disabled within the meaning of the Equality Act 2010 and that his physical conditions, together with later depression, affected his ability to carry out all the duties of his normal production-line role. It found that he was laid off on 11 April 2018 after the respondent concluded it had no suitable role for his light duties, and that he was dismissed on 27 March 2019 after the respondent proceeded on the basis that there was no role he could perform.

On the discrimination arising from disability claim, the tribunal held that dismissal was unfavourable treatment because it was caused by something arising in consequence of disability, namely the claimant's inability to carry out all required duties and his inability to return to work. The respondent relied on managing attendance, a favourable exit and health and safety as legitimate aims, but the tribunal rejected the justification evidence. It said there was no evidence of the financial and administrative burden of keeping him employed, that this was not a favourable exit on the facts, and that the respondent had not properly assessed whether he could be placed in alternative roles, including in Spares or other light duties work.

On reasonable adjustments, the tribunal held that the respondent's PCP was a requirement that the claimant must be able to do all duties of a General Operator role without risk to his health, which put him at a substantial disadvantage. It found the duty to make adjustments had arisen by at least April 2017 and again when the issue was revisited in November 2018. The tribunal identified possible adjustments including placement in Spares with occasional assistance for heavy items, or assigning light duties such as labelling or assembling sub-components, and it rejected the respondent's view that these amounted to impermissible 'cherry picking'. The lay-off complaint was out of time but the tribunal extended time as just and equitable; the March 2019 dismissal complaint was in time.

The tribunal also found the dismissal was unfair under section 98(4) Employment Rights Act 1996 because, if reasonable adjustments had been made, the claimant would have been capable of carrying out suitable duties. The claims for holiday pay and unauthorised deductions were dismissed. No final remedy was determined in this judgment; the tribunal listed a separate remedy hearing for 26 November 2021.