Mr J Carter, Counsel For the v Respondent — 2019

The case was heard over 12 to 16 August 2019 and concerned Mr W Mohammed, who had worked for Cummins Limited as a machinist from 15 May 1987 until his dismissal on 20 June 2017. The tribunal considered claims of unfair dismissal, discrimination arising from disability under section 15 of the Equality Act 2010, and harassment. It recorded that the respondent accepted the claimant was disabled at the material time, with the disability consisting of mental ill health.

The central factual issue was whether the claimant had genuinely believed that he had permission to take a therapeutic break in Pakistan while off sick. The tribunal accepted his evidence that he believed he had authority to go, based on discussions with Mr Hadley and Ms Price and the occupational health and medical material. It found that his conduct arose in consequence of his disability and that dismissal was unfavourable treatment for the purposes of section 15. Although the respondent identified legitimate aims, including ensuring attendance at occupational health and disciplinary meetings and maintaining standards, the tribunal held that dismissal was not a proportionate means of achieving those aims because the investigation and decision-making process was not fair and sufficiently reasoned.

On unfair dismissal, the tribunal found that the principal reason for dismissal was conduct, but held that the respondent had not acted reasonably within section 98(4) of the Employment Rights Act 1996. It criticised the lack of adequate investigation, including the failure to re-interview Dr Cassidy and to pursue obvious ambiguities in the evidence, and said the appeal did not cure the earlier defects because Mr Barker largely endorsed the original decision. The tribunal therefore upheld both the disability discrimination and unfair dismissal claims. The harassment complaint was dismissed as out of time, with the tribunal stating that it had no jurisdiction to hear it and that it would have dismissed it in any event. Liability only was decided at this hearing, and the case was adjourned to 13 November 2019 for remedy evidence and submissions.