A tribunal has ruled that security company Mitie failed to make reasonable adjustments for a security guard who had lost most of his sight and that his subsequent dismissal was unfair.
The claimant was employed as a security guard from January 2018 until he was dismissed in September 2021.
The tribunal heard that he first started to suffer problems in or around October 2020 and had lost all vision in his left eye and 75 per cent in his right eye by 4 January 2021 when he commenced a period of sickness absence. The claimant was subsequently diagnosed with non-anterior arteritic ischemic neuropathy – a permanent condition meaning he wouldn’t be able to retrieve his eyesight and was registered as being disabled.
On 15 March he contacted his employer to express his wish to return to work as he could not survive on statutory sick pay, and asked about reasonable adjustments. A subsequent occupational health report stated that no reasonable adjustments could be made, and that the claimant was not fit to return to work. A second appointment followed on 1 July and following receipt of a letter detailing the claimant’s ophthalmology consultation, it was concluded that he had no vision in his left eye and only a third in his right. The occupational health report stated that the claimant wasn’t fit to return to work due to sight loss and was unlikely to be so for the foreseeable future, and there were no adjustments that could be suggested to facilitate this.
On 2 August 2021, the claimant raised a grievance, explaining how he felt he had been ‘treated unfairly if not forgotten’ by his employer and that HR had never spoken with him to discuss possible redeployment or any reasonable adjustments to allow him to return to work.
In August 2021, the claimant discussed alternative employment options with his managers, and it was suggested that he could ‘trial travelling to and from’ Southampton docks, even though he was not able to drive and did not feel confident using public transport. The tribunal found that Mitie’s expectation appeared to be that the claimant ‘would need to demonstrate that he could do the job in spite of his disability rather than considering whether any role could be adjusted for him as a disabled person.’
On 27 August 2021, the claimant was invited to a grievance hearing and a capability meeting immediately afterwards. Mitie rejected the claimant’s grievance and on 14 September 2021 issued him with a notice of termination of employment, saying they could not provide any further support.
The tribunal accepted that Mitie genuinely believed the claimant was no longer capable of performing his duties but found ‘it is right that we all consider that the respondents were not reasonable in their belief that he was not capable of performing his duties and the main reason for that is that they had not carried out sufficient enquiries.’
The tribunal was critical of Mitie’s lack of action following the claimant’s diagnosis and stated they only took serious steps once the claimant had raised his grievance. It concluded that Mitie should have made proper enquiries about what assistance might be available to the disabled claimant to enable him to come back to work. This could have included some contact with organisations providing support to the blind and partially sighted, as well as some form of workplace assessment to consider what the claimant could do rather than focusing on what he could not do.
The tribunal found that the claimant was discriminated against because of a reason arising from his disability and that he had been unfairly dismissed. The question of compensation was remitted to a later hearing.
Debbie Knowles, Managing Director of EML, comments:
‘At first blush this seems a harsh result for Mitie, who were faced with a security guard who had lost the majority of his sight, and an Occupational Health Report which clearly stated that this would not improve, and that there were no reasonable adjustments which the OH advisor could suggest to allow him to return to work. However, employers should always remember that the duty to make reasonable adjustments is theirs, and whilst an OH provider can advise, the onus is on the employer to investigate. If Mitie had done more to show that it had considered adjustments, and discussed this properly with the employee, it would have stood a far better chance of defending the claims.’
If you have any pending tribunal claims or would like to discuss any of the issues raised in this article, please do not hesitate to contact us on 01942 727200 or email email@example.com. EML supply not just commercially minded employment law advice and bespoke HR services, but a comprehensive employment tribunal representation service to our clients. Our experienced consultants have defended thousands of claims over the years and will handle any claims you receive, ranging from straightforward unfair dismissals to complex discrimination cases.
Alternatively, come along to our FREE Mock Employment Tribunal on Tuesday, 14 May at The Florrie, Liverpool between 9:00am and 1:00pm to witness a case covering an unfair dismissal and disability discrimination arising from a long-term sickness absence. Watch the team re-enact the Employment Tribunal hearing, complete with witness evidence, document bundles and submissions, giving you the confidence to deal with the practical steps involved and a greater understanding of how the tribunal process works. It’s free to attend, visit Eventbrite to register your place.