Claimant v Morris Leslie Plant Hire Ltd

Dismissal was procedurally unfair. Respondent failed to refer claimant to occupational health for advice on how autism might impact the redundancy process, despite a HR team member identifying it would be useful. Selection criteria relied too heavily on subjective view of one manager. However, claimant would have been fairly dismissed at the same time even if a fully fair procedure had been followed.

Claimant's refusal to drive 14-tonne excavators arose from autism (inability to accept he might be wrong due to autistic traits). He was scored down in appraisal for this refusal, which fed into redundancy scoring. Respondent could reasonably have been expected to know claimant was disabled and, with reasonable inquiry, that he was scored down on something arising from disability. Dismissal was not a proportionate means of achieving legitimate aim because respondent failed to refer to occupational health to identify whether scoring was adversely impacted by disability.

Manager who scored claimant (Mr Bishop) did not know claimant was disabled. He applied same criteria to all three drivers. No findings from which tribunal could conclude that lower scoring was on grounds of disability. Claimant did not prove prima facie case so burden of proof did not shift to respondent.

Tribunal found respondent could not reasonably have been expected to know, even following reasonable inquiries (including occupational health referral), that claimant would be disadvantaged by some aspects of his autism in the redundancy process and that use of criteria might impact his scores. Real failure was not referring to occupational health, but even if they had, there would still have been lack of clarity about whether claimant was disadvantaged by use of particular criteria. Therefore respondent not under duty to make reasonable adjustments.