Mr Nick Toms, of counsel For the v Respondent — 2023

The claimant was a Piccadilly line train driver dismissed on 10 July 2021 for medical incapability after a prolonged absence that began on 11 September 2020 because of back pain and facet joint arthritis. The respondent’s Attendance at Work Procedure required a case conference, consideration of reasonable adjustments and alternative employment, and medical termination only as a last resort. An occupational health report on 16 April 2021 said he was not fit for work in any capacity but also stated that medical termination was not necessary at that time and that his symptoms were expected to resolve with appropriate treatment.

The tribunal found that the decisive procedural failure occurred when Mr Smith dismissed the claimant’s appeal on 22 September 2021 without consulting the Head of London Underground Occupational Health, contrary to the respondent’s own procedure. The tribunal held that this was not a mere technical lapse: the appeal should have been put before LUOH with the relevant medical material, including the later orthopaedic report from 9 July 2021. That report said the MRI showed only age-related changes, no neurologically significant lesions, and no reason for medical retirement, and it recommended conservative management and workplace adaptations.

For the section 15 EqA 2010 claim, the tribunal accepted that protecting health and safety and saving cost could be legitimate aims, but held that dismissal was not a proportionate means of achieving them on the evidence before it. In particular, Ms Simms decided to terminate only two days before the claimant’s first specialist appointment and three days before he was seen, so the tribunal considered that the proportionate course was to await that advice and then seek further LUOH input. The tribunal also found that the absence of a fully informed LUOH consultation meant the appeal dismissal could not be justified.

For the reasonable adjustment claim, the tribunal held that the respondent applied a PCP requiring train drivers to attend work, that the claimant was substantially disadvantaged by his back condition, and that it would have been a reasonable adjustment to delay dismissal while obtaining a properly informed LUOH view, including in the light of the specialist report and an in-person consultation. All claims therefore succeeded. A remedy hearing was listed for 30 and 31 January 2024, and the tribunal noted that the claimant was seeking reinstatement.