Members: Mr S F Evans Mr P Kelman Mr Cameron Kerr v Represented by: Mr J Mitchell H & S Representative Midland Bluebird Limited — 2017

The claimant worked as a bus driver for Midland Bluebird Limited from 14 September 2015 until 3 July 2016. A preliminary hearing found that he was a disabled person for the purposes of section 6 of the Equality Act 2010 because of Asperger's Syndrome. The unfair dismissal claim had already been dismissed because he did not have sufficient qualifying service, leaving the section 15 disability arising from disability claim for determination.

The dispute concerned the respondent's response after the claimant was dismissed for performance reasons and appealed. Mr Grant, who conducted the appeal, knew of the claimant's condition and arranged a further PCV driving test after refresher training, which the claimant passed on 26 July 2016. Mr Grant then said the claimant could not be reinstated until written confirmation was received from DVLA that he was fit to drive, and he asked the claimant to notify DVLA about his condition. The Tribunal held that the relevant unfavourable treatment was not the DVLA requirement itself, but the decision not to reinstate the claimant until written confirmation had been obtained.

The Tribunal accepted that the treatment was connected to disability because Mr Grant thought the claimant's driving might be affected by Asperger's Syndrome. It found that the respondent had a legitimate aim of protecting health and safety as a bus operator, including the safety of passengers, other road users and the public. In assessing proportionality, the Tribunal relied on the claimant's collision history, his very high risk rating, repeated Drive Green red scores, and the fact that refresher training had not improved those indicators. It also accepted Mr Grant's concern that reinstating the claimant without written DVLA reassurance would leave the respondent with little protection if another incident occurred.

The Tribunal therefore concluded that making reinstatement conditional on written DVLA confirmation was a proportionate means of achieving a legitimate aim. It dismissed the section 15 claim and said it was not necessary to consider remedy.