Member Taylor Tribunal Member Coyle Mr B Fitzsimmons v Tesco Stores Ltd — 2020

The claimant was employed as a customer delivery driver and had COPD and prostate issues. The respondent knew of the prostate issues, but did not know before 23 May 2019 that the claimant experienced urinary and bowel incontinence. The claimant had been taking the company van home during gaps between deliveries, latterly so he could use his own toilet facilities, wash, change clothes, or clean the van when needed. He continued to make deliveries within the allocated time slots.

The tribunal accepted that conduct was the reason for dismissal and that the respondent had carried out a reasonable investigation and fair procedure. It found, however, that dismissal fell outside the range of reasonable responses. The rule against taking vans home was not stated to be gross misconduct in the training, handbook, or disciplinary procedure; the claimant's location was tracked and his previous line manager had not raised the issue; and by the disciplinary hearing the respondent had an occupational health report confirming the relevant medical issues.

For discrimination arising from disability, the tribunal found that the dismissal was unfavourable treatment because of the claimant taking the van home, and that this arose in consequence of disability. The respondent had a legitimate aim of requiring colleagues to follow policies and not misuse company property, but dismissal was not reasonably necessary because lesser measures, such as a warning, were available. Other discrimination arising from disability allegations and the reasonable adjustments claim were dismissed.