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In the case of Sohrabi-Karyani v Brighton and Hove Bus and Coach Company Ltd ET/2302706/15 the Employment Tribunal determined that the failure by the employer to take steps to consult with an employee on why an alternative position was not suitable for them constituted discrimination.

Mr Sohrabi-Karyani (“the Claimant”) worked for a number of years for the Brighton and Hove Bus and Coach Company Ltd (“the Respondent”) as a bus driver. On 9 October 2014 he was, whilst driving a bus for the Respondent, punched in the face and developed blurred vision in his right eye. As a result of this injury the Claimant was unable to drive (whether a bus or a car, or any other vehicle) for a substantial period of time (until December 2015). He was also signed off work sick from the date of the assault and remained signed off work until he was dismissed. Under the Claimant’s contract of employment he was entitled to be paid full pay for 104 weeks whilst off work sick, as the injury causing him to be off work had occurred at work.

On 12 March 2015 the Respondent’s occupational health adviser advised the Respondent that the Claimant should be fit to return to work from 22 April 2015. On 19 March 2015 the Claimant was summoned to a capability meeting and informed that he would need to return to work before 22 April 2015. A formal capability meeting was then held on 23 March 2015, at which the Claimant was dismissed. However, the Claimant appealed against his dismissal and two appeal processes were conducted, during which a vacancy arose at the Respondent for a temporary night cleaner; it was therefore not until 26 June 2015 that the Claimant was in fact dismissed.

The Claimant’s first appeal against his dismissal was not successful. The second appeal, chaired by Mr Carey, found that the position of temporary night cleaner was available and he instructed the occupational health adviser, Dr Perry, to assess whether the Claimant was fit to undertake cleaning duties. Dr Perry provided a report dated 7 May 2015 which confirmed that the Claimant was in fact fit to for a cleaning position but suggested that one of the Respondent’s managers, Mr Reid, undertake a risk assessment with the Claimant to determine whether it was appropriate for the Claimant to undertake the cleaning position. Mr Reid undertook the risk assessment on 14 May 2015 but failed to speak to, or meet with, the Claimant in order to discuss his findings from the risk assessment.

A further appeal hearing was held on 26 June 2015, chaired by Mr Coyle. Mr Coyle considered the paperwork, including Mr Reid’s risk assessment and Dr Perry’s reports, and concluded at a short meeting that he could not place the Claimant in the position of temporary night manager. He therefore decided to uphold the Claimant’s dismissal, effective on that date.

The Claimant brought to the Employment Tribunal claims for unfair dismissal, discrimination arising from disability, failure to make reasonable adjustments, and breach of contract.

The Employment Tribunal found that, between 23 March 2015 and 26 June 2015, the Claimant was disabled for the purposes of section 6 of the Equality Act 2010. The Tribunal also found that the dismissal of the Claimant on 26 June 2015 was unfavourable treatment of the Claimant. The Tribunal found that this unfavourable treatment had arisen because of something in consequence of the Claimant’s disability (i.e. his inability to drive a bus).

The main question for the Tribunal to determine was, therefore, was the Claimant’s dismissal a proportionate means of achieving a legitimate aim? The Tribunal found that it was not as, although the Respondent had the legitimate aim of ensuring the smooth running of a quality bus service and maintaining a standard of service to its customers as well as ensuring workplace safety, the Claimant’s dismissal was not a proportionate means of achieving this aim: the Respondent had not sufficiently explored alternative options to dismissal (e.g. a “buddy arrangement” for the Claimant upon his return to work, the possibility of the Claimant working during the day rather than at night, or the Claimant undertaking a trial period for the cleaning position at night) and had therefore not acted proportionately in dismissing.

The Tribunal also found in the Claimant’s favour in his unfair dismissal claim, although his claim for failure to make reasonable adjustments failed. The Claimant did not pursue his breach of contract claim at the Tribunal hearing.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case demonstrates that, in circumstances where an employer is considering dismissing an employee because of the effect of a disability, it is incumbent upon the employer to carefully analyse what reasonably practicable steps could be taken to avoid dismissing the employee. A failure to take such steps can render the dismissal discriminatory in nature.”

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Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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