Mr I Ashraf and Mr J Gallacher Mr J Reid v Represented by: Mr P Deans - Solicitor Network Rail Infrastructure Ltd — 2024

Mr Reid had worked for Network Rail from August 1984 until his dismissal effective 14 March 2023. The tribunal found that he was disabled within the Equality Act 2010, that his inability to carry out his substantive track-inspection role and his sickness absence arose in consequence of that disability, and that the respondent had before it occupational health reports from August 2018, May 2022, August 2022 and September 2022. The respondent identified technical clerk and section admin vacancies, and Mr Reid wanted to be considered for a stores role. The tribunal found the contractual Stood Off provisions were relevant and required the respondent to make every possible endeavour to identify suitable alternative work, with a Stood Off period of up to two years with basic pay if a suitable alternative role was not vacant.

On the section 15 claim, the tribunal held that dismissal was unfavourable treatment. It accepted the respondent’s stated legitimate aim of managing staff who could not do their substantive role and of avoiding unsustainable pay costs, but concluded that dismissal was not a proportionate means of achieving that aim. The tribunal found that the respondent had not clearly and properly applied the Stood Off provisions, had not clearly established that the admin roles had been refused, and had not properly explored a trial period for the stores role even though the most recent occupational health report suggested that a trial was the only way to identify whether the role could be done. It also found there was no evidence that the respondent’s continued cost of retaining Mr Reid would have had the impact said to justify dismissal, particularly given the respondent’s size and resources.

The unfair dismissal claim was also upheld. Capability was the potentially fair reason for dismissal and the respondent genuinely believed Mr Reid was incapable of his substantive role, but the tribunal held that the respondent did not act reasonably in treating capability as sufficient for dismissal. The same failures mattered: the alternative roles had not been properly clarified or exhausted, the stores role had not been trialled, and the appeal was not heard within a reasonable timeframe, with about seven months passing after dismissal and no written explanation for the delay. The tribunal found that a reasonable employer would have clarified Mr Reid’s position on the admin roles and would not have dismissed in the circumstances.

The unlawful deduction claim was dismissed. The tribunal held that the Stood Off sums claimed were not wages within section 13 ERA 1996, but were referable to a period after termination and, on the tribunal’s analysis, to damages for breach of contract rather than wages properly payable under a subsisting contract. On remedy, the tribunal awarded a basic award of £16,845 and discrimination compensation of £31,829.76, made up of £7,500 for injury to feelings, £601.64 interest on injury to feelings, £10,540.62 net wage loss, £703.32 interest on net wage loss, £11,975 pension loss and £509.18 interest. It found that, had the respondent followed the Stood Off provisions, Mr Reid would have taken one of the admin roles and remained employed, and it assessed future comparable employment as virtually certain within 21 months of dismissal. No ACAS uplift was made.