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Disability Discrimination & Ill Health Capability Dismissal Case Study

1st December 2016

By Senior Employment Lawyer Sylvia Chan

Client Situation

Our client was employed for 5 years as a Warehouse Assistant for a leading national retailer. Unfortunately, he suffered an injury at work and made a personal injury claim against his employer as there was no training given by his employer when he had to move heavy cages.

He suffered a severe back injury whilst trying to move some cages as requested by his supervisor. As a consequence he was unable to lift everyday objects such as a kettle with water in, run or drive for long periods of time as suffered severe back pain.

He was subsequently signed off sick from work due to the extent of his injuries. The medical report stated that he was unable to return to his original role as he could no longer lift heavy objects, and it was recommended he return to work in a less labour intensive role like a desk job.

Our client applied for alternative roles with his employer but was unsuccessful. The employer refused to “make reasonable adjustments” and insisted our client attend competitive interviews for alternative roles, and his employer refused to provide any additional training for our client to complete the alternative roles that were available.

The employer began capability proceedings against our client. Our client was off sick for over 6 months and he was dismissed under the alleged grounds of ill health capability. Our client appealed his dismissal but was unsuccessful.

He started Early Conciliation through ACAS himself before calling our Employment Lawyers for help.

How We Helped

Senior Employment Lawyer Sylvia Chan assessed the prospects of our client’s case and then issued an Employment Tribunal claim as our client had already completed the Early Conciliation process with ACAS.

Sylvia assisted our client in drafting his Employment Tribunal claim for:

  • Ordinary unfair dismissal
  • Discrimination arising from a disability
  • Failure to make reasonable adjustments
  • Indirect disability discrimination for applying a policy which placed our client at a disadvantage by insisting he be physically fit for his role, and applying capability proceedings against our client which clearly disadvantaged disabled persons more than non-disabled persons.

Sylvia used the legal argument that because the Employer caused our client’s injury they should have acted beyond their usual duty to find an alternative role for our client.

The case was listed for a Preliminary Hearing which Sylvia attended with the Barrister we instructed, and our client.

The Employer tried to argue at the Preliminary Hearing that our client had started Early Conciliation before his actual dismissal and therefore arguing our client had not complied with the Employment Tribunal rules. The Employer also tried to have our client’s claim struck out on this basis but was unsuccessful. We persuaded the Employment Tribunal that the claim should be accepted and the case was listed for a Final Hearing.

Our client’s employer adopted a robust defence to the claims and initially refused to accept that our client was disabled due to the personal injury claim. We therefore had to provide medical evidence and assist our client in drafting his Disability Impact Statement in order to persuade the Employer to accept his disability which they did.

Sylvia drafted the Schedule of Loss which was ordered by the Employment Tribunal. This is a document showing the compensation he was looking for and had calculations for the Tribunal to see how we came to the figures. As this included a discrimination at work claim there was an injury to feelings award which we sought to claim.

Sylvia assisted with dealing with disclosure of documents and made further attempts to settle the case.

The Outcome

Before Sylvia started drafting witness statements she successfully negotiated a settlement. Our client’s employer made an offer of £3,000 in compensation which Sylvia rejected and then negotiated a £6,000 settlement for our client.

Sylvia also ensured through negotiation that our client was still able to pursue his personal injury claim despite settling his Employment Tribunal claim.

Our client was very happy with the result as he had limited loss of earnings due to securing a better paid job elsewhere.

For employment legal advice call our Employment Lawyers on 01618558356 or contact us online and we will call you.

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