Mr B Eagles v Howard Kennedy Services Ltd: 2301244/2016
| Judgment Date | 12 June 2017 |
| Citation | 2301244/2016 |
| Published date | 20 July 2017 |
| Court | Employment Tribunal |
| Subject Matter | Redundancy |
Case No. 2301244/2016
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THE EMPLOYMENT TRIBUNAL
SITTING AT: LONDON SOUTH
BEFORE: EMPLOYMENT JUDGE ELLIOTT
MEMBERS: MS C OLDFIELD
MS S CAMPBELL
BETWEEN: Mr B Eagles
Claimant
AND
Howard Kennedy Services Ltd
Respondent
ON: 31 May and 1, 2 and 5 June 2017
IN CHAMBERS: 6 and 7 June 2017
Appearances:
For the Claimant: Mr A Smith, counsel
For the Respondent: Mr N Caiden, counsel
RESERVED JUDGMENT
The unanimous Judgment of the Tribunal is that:
1. Upon the respondent conceding that the claimant was unfairly
dismissed, the claim for unfair dismissal succeeds.
2. The claims for direct and indirect disability discrimination and for a
redundancy payment are dismissed upon withdrawal by the
claimant.
3. The claim for disability discrimination (reasonable adjustments
and discrimination arising from disability) succeeds.
4. The claim for direct age discrimination fails and is dismissed.
REASONS
1. By a claim form presented on 1 July 2016 the claimant Mr Brian Eagles
claims unfair dismissal, age and disability discrimination and a
redundancy payment.
2. The claimant worked for the respondent firm of solicitors as a salaried
partner with continuous service from 1 October 1999 to 30 April 2016.
Case No. 2301244/2016
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3. The parties agree that the correct name of the respondent is Howard
Kennedy Services Ltd and the record is amended accordingly.
The issues
4. There was an agreed list of issues which was at pages 59-64 of the
bundle and was confirmed with the parties at the outset of the hearing.
5. Unfair dismissal was conceded by the respondent. The claims for direct
and indirect disability discrimination and for a redundancy payment were
withdrawn by the claimant and are dismissed.
Discrimination arising from disability – section 15 Equality Act
6. Was the claimant dismissed by the respondent because of something
arising in consequence of his disability? The respondent accepts that it
was aware of the claimant’s diagnosis of mouth cancer in or around
October 2015 and that this constitutes a disability for the purposes of
section 6 of the Equality Act 2010.
7. The “something arising in consequence of the claimant’s disability” is
said to be all (or alternatively some) of the following:
a. A material decline in the claimant’s performance during the business
year 2015/2016, in comparison with the previous year;
b. without prejudice to the generality of (a) above, a material decline in
revenue/income generated by the claimant from (i) introductions
and/or (ii) billings during the business year 2015/2016, in comparison
with the previous year;
c. the claimant’s reduced and/or impaired capacity/ability to carry out
his day-to-day work;
d. the claimant’s reduced and/or impaired capacity/ability to carry out
business development activities;
e. the claimant’s reduced and/or impaired capacity/ability to interact
with colleagues, clients and potential clients.
8. If the claimant was dismissed by the respondent because of something
arising in consequence of his disability, was that unfavourable
treatment a proportionate means of achieving a legitimate aim? For the
purposes of section 15(1)(b) of the Equality Act, the aim relied upon by
the respondent is “the need to ensure that employees were performing
sufficiently and at a level commensurate with their remuneration, thus
ensuring the respondent could remain profitable and in business”.
Failure to make reasonable adjustments – sections 20 and 21 Equality Act
9. Did the respondent apply all or some of the following provisions, criteria
or practices (PCP’s) to the claimant (whether individually or in
combination);
Case No. 2301244/2016
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a. A requirement or expectation that the claimant, as a salaried
partner earning a basic salary of £125,000 per annum (for a 4-day
working week), for the business year 1 May 2015 to 30 April 2016,
generate revenue/income of £200,000 from personal billings;
b. a requirement or expectation that the claimant, for the business
year 2015/2016, generate revenue/income of £325,000 from
introductions;
c. a requirement or expectation, in respect of the business year
2015/2016, that the cost of individuals within teams and/or the
claimant specifically, shall not exceed 30% (or thereabouts) of the
revenue/income generated by them?
10. The respondent does not dispute applying the PCP’s.
11. Was the claimant placed at a substantial disadvantage by the application
of such PCP’s in comparison with persons who are not disabled?
12. The substantial disadvantages relied upon by the claimant are:
a. That he was unable to meet, or alternatively found it more difficult
to meet, the aforesaid requirements/expectations;
b. that he was at an increased risk of having his employment
terminated by the respondent;
c. that he was dismissed.
13. If the claimant was put at a substantial disadvantage, did the respondent
fail to take such steps as it was reasonable to have to take to avoid the
disadvantage? The claimant contends that the following steps would
have been reasonable in the circumstances:
a. Suspending or dis-applying the expectations/requirements listed in
paragraph 9 above (all or some of them) for the business year
2015/2016 in respect of the claimant;
b. alternatively, modifying the expectations/requirements listed in
paragraph 9 above (all or some of them) for the business year
2015/2016 in respect of the claimant, such that his
performance/productivity/contribution/value to the respondent
would have been regarded as satisfactory;
c. suspending the practice of measuring the claimant’s performance
by reference to the aforesaid expectations/requirements (all or
some of them) whilst the claimant was suffering from the effects of
mouth cancer and/or until he had fully recovered and/or was in
better health;
d. not taking into account or giving less weight to the claimant billings
and/or introductions figures for the business year 2015/2016,
alternatively the period of time during which the claimant was a
disabled person, when deciding (i) the future structure of the
respondent’s departments; (ii) who was to be placed at risk of
dismissal as a result of the respondent’s decision to restructure its
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