The claimant was initially employed by the second respondent in 2007 as a cleaner and fuel dispenser at the bus depot in Enniskillen.   He was then transferred to the first respondent in 2015 on the same terms and conditions.  There was a dispute by the claimant about the nature of this transfer but the Tribunal found that at the material time he was employed by the first respondent thereby allowing the second respondent to be dismissed.

In 2014 the claimant was diagnosed with kidney cancer and was subsequently off on sick leave for a long period.   The claimant regularly attended occupational health appointments and it was in October 2015 that he raised concerns about chemicals in the workplace which he believed was responsible for his cancer diagnosis.   Occupational health contacted the claimant’s consultant who stated that there were no chemicals within the workplace that required restriction.  Despite this, the claimant wrote to his line manager stating that he could not return to the same work as his GP had advised him not to work with chemical agents or diesel.   There was never any evidence produced of this advice.  Other options proposed by the claimant included having a large medical discharge payment and a pension.  The line manager never replied which the claimant asserted as being the start of discrimination on the basis of disability.   The respondents acknowledged that the lack of reply was bad practice but stated that the line manager had no power vis-à-vis severance pay.

The claimant reported the first respondent to the Health and Safety Executive leading to a report which found there were no breaches.   The claimant questioned the ability of the inspector but no evidence was ever demonstrated as to why.  It was proposed to have the claimant back in his role which he disagreed with.  His line manager agreed to place him on a redeployment register even though it was ordinarily only available to those who were medically unfit.  The claimant was advised of seven roles which did not require contact with chemicals yet no response was ever received.  It was at this point that the disability discrimination claim was lodged.

A further meeting was held with the line manager with the view that the employment could be terminated if he refused to return.   The claimant stated that he would never return to work in the same job and that he would not be discussing redeployment until after his Tribunal claim.   The claimant also provided a letter requesting a substantial financial payment in return for dropping his claim.   Following this meeting, a letter was sent dismissing the claimant for unreasonably refusing to return to work despite being medically fit.  This led to a subsequent claim for unfair dismissal.

The Tribunal found that there was no evidence proffered by the claimant to demonstrate that he was subject to less favourable treatment on the grounds of disability.  There was no comparator given except one individual who did apply for the jobs on the redeployment register and was successful.  This was not an appropriate comparator considering the real differences that existed between them (i.e. one applied for the new role yet the claimant did not).   It was not reasonable for the claimant to insist that it was unsafe for him to return to his role without any evidence.  On the issue of the dismissal, the claim was that it had only been brought about by bringing the disability discrimination claim.    The Tribunal found that it had nothing to do with the dismissal but instead the formal disciplinary procedure was brought about by the failure to attend occupational health appointments and the blank refusal to return to work.  Accordingly, the Tribunal found that dismissal was an appropriate sanction and it was for a fair reason, that being unreasonable conduct.

Practical Lessons

This case demonstrates a range of issues that can arise with problematic employees who assert a range of unfounded issues and subsequently claims at the Tribunal.   The respondents in this case demonstrated a patient and fair approach in dealing with these issues which provided a good basis for making their defence at the Tribunal.  The fact that the claimant was placed on the redeployment register despite not meeting the criteria was seen as a gesture of goodwill in a way and this demonstrated how they were willing to assist the claimant rather than be discriminatory in any way.  Employers should take heed of this even though it may be difficult to do when faced with an employee who may only be seeking a large pay day.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/

The Claimant unsuccessfully appealed this decision to the Northern Ireland Court of Appeal. A review of that decision is available here.