Member W Canning Tribunal Member A Shanahan Mr Albert Iannetta v Represented by:15 Mr J Lawson, Solicitor ATMRC Ltd — 2023

Albert Iannetta was found to be disabled by reason of osteoarthritis in his right ankle, and the respondent knew or ought reasonably to have known of that disability. After furlough from March 2020, the respondent asked him in June 2021 to return mainly to driving work on the NCR run. Medical evidence said he could do only administrative work or very light duties and should avoid heavy lifting and heavy vehicle driving. The respondent then explored alternatives, including a new Recycling Material Operative role for 16 hours per week at £9 per hour, while the claimant sought £10 per hour.

On the s.15 discrimination arising from disability claim, the tribunal accepted that the dismissal was unfavourable treatment arising from something arising in consequence of disability. It held that the respondent's aims of getting the work done and controlling costs, in the context of substantial trading losses, were legitimate. Applying the proportionality analysis, including the Bank Mellat factors, the majority concluded that offering the alternative role at £9 per hour was a proportionate means of achieving those aims and that the s.15(2) defence was made out, so the claim failed.

On reasonable adjustments, the tribunal accepted the PCPs relied on by the claimant, namely the requirement to attend work and to be fit for the role, and accepted that they placed him at a substantial disadvantage. The majority held that the respondent had made a reasonable adjustment by creating and offering the alternative role and was not required to preserve his former pay in the circumstances; one tribunal member dissented and would have upheld the claim, taking the view that £10 per hour was a reasonable adjustment. The tribunal criticised the respondent's understanding of disability law and said the grievance handling was not well handled, but those criticisms did not alter the outcome.

On unfair dismissal, capability was accepted as the potentially fair reason. The tribunal held unanimously that the respondent acted within the band of reasonable responses under s.98(4) ERA 1996 and that the process, viewed as a whole, was fair. The dismissal was therefore held fair and all claims were dismissed, so no remedy arose.