Claimant v Aliaxis UK Limited

The Tribunal found the dismissal was unfair because the Respondent dismissed on grounds of capability without exploring whether payments from the insurer (Unum) should be reinstated in light of its conclusion that the Claimant was genuinely unfit for work. Alternatively, the Respondent should have given the Claimant a proper opportunity to understand and meet the allegations of fraud and put the surveillance material before the Occupational Health specialist. The Respondent closed off the insurance alternative to dismissal without transparency or procedural fairness.

The Tribunal concluded that in each case the Claimant was not treated less favourably because of his particular disability. In respect of dismissal, a comparator with similar abilities who was also believed to be incapable for the foreseeable future would have been treated the same way. The allegations about being accused of fraud and threatened with resignation failed because the 'reason why' Ms Askham acted was her belief that the Claimant was not disabled (i.e. was a fraudster), not because of his disability.

The Respondent conceded that the dismissal was unfavourable treatment arising from the Claimant's disability (his incapacity for work). The Tribunal found the dismissal was not a proportionate means of achieving a legitimate aim because a less intrusive measure was available: contacting Unum with Dr Prakesh's report and inviting them to resume payments. The Respondent's needs would not have been compromised by this approach. The existence of the insurance policy made dismissal disproportionate in these circumstances.

The Respondent accepted imposing a requirement to perform all aspects of the job and that this placed the Claimant at a substantial disadvantage. However, the Claimant sought a 'complete change of duties' requiring a different office job. The Tribunal accepted there was no existing office job into which the Claimant could be slotted and that the duty to make reasonable adjustments did not extend to creating a new role for which the Respondent had no use. The Claimant had not applied for existing vacancies before his employment ended and the one he did apply for he was not qualified for.

The harassment claim relating to surveillance was time-barred (last surveillance 14 March 2023, ACAS contacted 9 August 2023). Had time been extended, the Tribunal would have dismissed it anyway, finding the surveillance was not related to the Claimant's disability (it arose from suspicion he lacked the protected characteristic) and it was not reasonable for the conduct to have the harassing effect. The second harassment allegation (refusing to accept fit notes) failed on its facts.