Mr J Thurgood v British Telecommunications plc: 4100394/2016
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 2017 |
| Citation | 4100394/2016 |
| Court | Employment Tribunal |
| Published date | 22 May 2017 |
| Subject Matter | Disability Discrimination |
ETZ4(WR)
IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT GLASGOW
Judgment of the Employment Tribunal in Case No: S/4100394/2016 Heard at
Glasgow on the 6th, 7th, 8th, 9th September 2016 5
Employment Judge: J G d’Inverno, QVRM, TD, VR, WS
Members: Mr G Doherty
Mr E Borowski 10
Mr J Thurgood Claimant
Represented by:-
Mr R Wood, 15 Communication Workers
Union
British Telecommunications plc Respondent
Represented by:- 20 Mr J Brockbank, Solicitor
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
25
(FIRST) The Majority Judgment of the Tribunal is that the claimant’s complaint of
discrimination is dismissed.
(SECOND) The Majority Judgment of the Tribunal is that the claimant’s complaint of
unfair dismissal is dismissed. 30
Employment Judge: Joseph d’Inverno
Date of Judgment: 08 May 2017 35 Entered in Register: 09 May 2017
and Copied to Parties
40
S/4100394/16 Page 2
REASONS
1. This case called for a Final Hearing of 4 days’ duration at Glasgow on
6th September 2016 at 10.30 am. Both parties enjoyed the benefit of
representation; for the claimant Mr Thurgood, Mr Wood of the Communication 5
Workers Union and for the Respondent Company, British Telecommunications
plc, Mr J Brockbank, Solicitor.
Matters Agreed and Conceded
10
2. In the course of Case Management Discussion, conducted at the outset of the
Hearing, the following matters were confirmed:-
a) The claimant’s representative confirmed that the claimant accepted
that he was dismissed for reason of ill health capability, that is for the 15
reason asserted by the respondent. Parties’ representatives
accordingly confirmed there was no longer any issue before the
Tribunal as to the reason for dismissal.
b) The respondent’s representative conceded, for the purposes of the 20
Hearing, that at the material times, that is in the period from on or
about 17th December 2014 up to and including the Effective Date of
Termination 26th December 2015, the claimant was a person
possessing the protected characteristic of disability, by reason of his
medical condition of anxiety and depression, for the purposes of 25
section 6 and section 20 of the Equality Act 2010.
c) The claimant’s representative confirmed that the claimant’s previously
intimated complaint of direct discrimination in terms of section 13 had
been withdrawn and was no longer a complaint requiring determination 30
by the Tribunal at Final Hearing.
S/4100394/16 Page 3
d) The respondent’s management of the claimant’s ill health capability
and their ultimate decision to dismiss him for that reason, were subject
to and were conducted and taken in reliance upon the respondent’s
policies, procedures and managerial guidance “Managing Changing
Capabilities, Enabling Workplace Adjustments” et seq and terms of 5
which are produced at numbers 3-10 pages 30-54 of the Joint Bundle.
e) That the claimant was continuously employed by the respondent from
27/11/2006 until 26/12/2015 on which latter date he was dismissed,
following the expiry of an 8 week notice period and for reason of ill 1 0
health capability.
f) The Effective Date of Termination of the claimant’s employment
(“EDT”) was 26/12/2015.
15
The Issues
3. The following were identified, confirmed and recorded by the Tribunal as the
Issues requiring investigation and determination by the Tribunal at the Final
Hearing. 20
(First) Whether the respondent’s admitted dismissal of the claimant, for the
accepted reason of ill health capability:-
(a) falls to be regarded in terms of section 98(4) of the Employment 25
Rights Act 1996 as fair, as is asserted by the respondent;
or alternatively, as is asserted by the claimant,
(b) as unfair by reason of the respondent failing to allocate to the 3 0
claimant on a permanent basis work which, as at the Effective Date of
Termination of his employment was being carried out in the respondent’s
Dumfries stores on an agency basis, the same being work which, in the
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