Members: Mr I Ashraf Mr W Muir Mr L Smith v Represented by – Mr G Bathgate Solicitor Tesco Stores Limited — 2021

Mr Smith worked as a delivery driver in the respondents' dot com operation at Stornoway. He had back problems and mental health difficulties, and the tribunal recorded that he had been absent from October 2018 until his dismissal on 16 December 2019. The respondents had previously arranged temporary assistance with loading, but that stopped when same day delivery ceased in September 2018 and there was no longer spare capacity. They offered him evening shifts, redeployment within the store, and other possible adjustments, but he did not take up the options that would have avoided the loading issue.

On unfair dismissal, the tribunal held that the respondents took adequate steps to discover the medical position, adequately consulted Mr Smith, and reasonably believed he was unfit to carry out his job with any reasonable adjustments. It accepted the evidence of Mr Davis and Mr Jones that there was no anticipated return date, that there were ongoing business difficulties in recruiting, training and retaining temporary drivers, and that the respondents could not reasonably be expected to wait longer. The tribunal concluded that dismissal was within the range of reasonable responses.

On discrimination arising from disability, the tribunal held that dismissal was unfavourable treatment and that it arose from absence, which itself arose as a consequence of disability. It accepted the respondents' aim of running the dot com department adequately, avoiding an undue burden on colleagues, and maintaining customer service as legitimate. It then found dismissal was a proportionate means of achieving that aim in light of the length of absence, the absence of any likely return date, the uncertainty around CBT, and the fact that other proposed arrangements had not enabled a return to work.

On reasonable adjustments, the tribunal was not convinced that the PCPs advanced by the claimant were in fact PCPs, because the respondents had offered assistance and had not insisted that he return on unchanged terms. Even so, it considered the case on that basis and held that a return to day deliveries requiring Mr Smith to load his van entirely without assistance would have placed him at a substantial disadvantage because of his back condition. The tribunal nevertheless found that the respondents had made reasonable adjustments, and that the particular adjustment sought by the claimant, namely loading by another employee without a job swap or unpaid time, was not reasonable because of cost and disruption in a busy store.