Claimant v Asda Stores Limited

Tribunal found dismissal was unfair due to lack of proper consultation with claimant, failure to discuss occupational health reports, poor management of absence, inadequate search for alternative employment, and excessive speed of dismissal process. Respondent failed to engage meaningfully with claimant and did not provide information about recruitment freeze. However, tribunal applied 100% Polkey reduction because even with fair procedure, claimant would have been dismissed due to no suitable vacancies existing.

First complaint (failure to consider redeployment/phased return) failed because the reason for non-consideration was not the claimant's inability to drive, but because there were no suitable redeployment options available. Second complaint (failure to engage proactively) failed because although there was failure to engage, this caused no detriment as claimant attended store regularly, and reason was poor management not the claimant's absence. Third complaint (dismissal) failed because although prima facie discriminatory, respondent objectively justified dismissal as proportionate means of achieving legitimate aim of managing long-term absence and workforce planning given no prospect of return to driving role and no suitable alternative roles.

All complaints failed because alleged PCPs (failing to allow trial shifts, failing to consider redeployment, placing on healthcare leave without assisting return, failing to provide disability awareness training, refusing to contribute to Access to Work grant) were not properly PCPs at all — they were personal to the claimant and not policies/practices applied to wider workforce. Even if they were PCPs, they did not place claimant at substantial disadvantage or there was no reasonable adjustment that could have been made given absence of suitable vacancies.

Five alleged acts of harassment at October 2022 meeting (asking if claimant could read powerpoint, comment about seeing 30cm beyond nose, comments about stacking shelves/ladders, being told he would be held to same targets, being told unsuitable for pod work) all failed. Tribunal found conduct did not have purpose of creating proscribed environment — comments arose in context of discussing return to work possibilities. Also found no effect of creating hostile environment — claimant made no complaint at time, matters not mentioned in claim form, and tribunal found events took on new significance only after legal advice and were included as amendments to strengthen claim.