Member N Bakshi Tribunal Member N Elliot Mr J King v Represented by: Mr M Dooley - Friend Rentokil Initial UK Limited — 2024

The claimant worked as a service technician from 30 April 2001 until his dismissal on 22 March 2024. He had a long period of sickness absence from 21 June 2022 because of lower back pain, returned on a phased basis in January 2023, and then went off sick again from 1 August 2023. The tribunal accepted that he was a disabled person from January 2023. It noted that earlier occupational health evidence was mixed, but the January 2024 report said disability legislation applied and described chronic back pain and severe disability on the claimant's own questionnaire.

On the reasonable adjustments claim, the tribunal treated the allocation of daily duties as a PCP, but found the claimant had not shown that it placed him at a substantial disadvantage beyond continuing back pain while he was working. It was not satisfied that the respondent knew, or ought reasonably to have known, before August 2023 that the claimant was likely to be put at that disadvantage by the duties allocation PCP. The tribunal also accepted that the sickness absence policy was a PCP and that it did create a disadvantage by requiring a sufficient level of attendance to avoid dismissal, but held that the respondent had met with the claimant, considered adjustments, put in place a phased return, and reasonably concluded that no further reasonable step was available to avoid the disadvantage.

For discrimination arising from disability, the tribunal accepted that dismissal because of sickness absence was unfavourable treatment arising from disability. It held, however, that the respondent's aims of managing sickness absence and maintaining service delivery were legitimate and that dismissal was proportionate in light of the claimant's two long absences, the absence of a foreseeable return, and the February 2024 fit note stating that he would not be fit to work for six months and would not benefit from phased return, altered hours, amended duties, or workplace adaptations. The tribunal also found that redeployment had been considered but no suitable alternative work was available.

The unfair dismissal claim was dismissed. The tribunal held that ill-health capability was a potentially fair reason for dismissal and that, under section 98(4) ERA 1996, the respondent acted within the band of reasonable responses after welfare meetings, occupational health referrals, stage 1 and stage 2 capability meetings, and the offer of an appeal. The judgment was liability only, so no tribunal remedy was determined, and the unlawful deduction/breach of contract issue about holiday pay was left for a later hearing.