D McFarlane and N Elliot Mr E Milrine v DHL Services Limited — 2023

The claimant, an HGV/LGV driver, had been absent from work from January 2020 with dizziness, vertigo-related symptoms, headaches, balance problems and associated mental health effects. His car and HGV licences had been revoked, and occupational health advised in April 2022 that he was not fit for his contractual duties or alternative duties, and would not be fit to return to driving work for at least a year, potentially longer.

The Tribunal found that the respondent had a genuine belief that ill health was the reason for dismissal, had reasonable grounds for that belief, and had carried out a reasonable investigation and consultation. It found the respondent was entitled to take account of the length of absence, the lack of a foreseeable return to work in any capacity, the cost and operational impact of agency cover, and the claimant's own view that he could not undertake alternative duties. The dismissal was found to be within the range of reasonable responses.

For the section 15 Equality Act claim, the Tribunal accepted that dismissal was unfavourable treatment because of disability-related sickness absence. It accepted the respondent's aim of meeting its customer's needs cost-efficiently as legitimate and found dismissal proportionate, because there was no reasonable prospect of a return to work and no lesser measure was shown to achieve that aim. The notice pay claim failed because the Tribunal interpreted the contract as providing statutory notice for eight completed years' service, and the claimant had received nine weeks' pay; the linked holiday pay claim also failed.