Mr W Rogerson v Busways Travel Services Ltd: 2415079/2019
| Jurisdiction | England & Wales |
| Judgment Date | 03 November 2021 |
| Citation | 2415079/2019 |
| Date | 03 November 2021 |
| Court | Employment Tribunal |
| Published date | 19 February 2021 |
| Subject Matter | Breach of Contract |
Case Number: 2415079/2019
1
EMPLOYMENT TRIBUNALS
Claimant: Mr W Rogerson
Respondent: Busways Travel Services Limited
RESERVED JUDGMENT
Heard at: North Shields
On: 23rd and 24th November 2020
(deliberations 27 November 2020)
Before: Employment Judge Sweeney
Members: Stan Hunter and Russell Greig
Representation:
For the Claimant: Richard Ryan, counsel
For the Respondent: Edward Nuttman, solicitor
The unanimous Judgment of the Tribunal is as follows:
1. The complaint of unfair dismissal is well founded and succeeds.
2. The complaint of wrongful dismissal is well founded and succeeds.
3. The complaint of disability discrimination by way of unfavourable treatment
because of something arising in consequence of disability is well founded
and succeeds.
4. The complaint of disability discrimination by way of failure to make
reasonable adjustment is well founded and succeeds.
Case Number: 2415079/2019
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REASONS
The Claimant’s claims
1. By a Claim Form presented on 13 December 2019, the Claimant brought claims
of unfair and wrongful dismissal and disability discrimination for contravention
of sections 15 and 20 - 21 Equality Act 2010. The Respondent denied the
claims. It contended that it fairly and lawfully dismissed the Claimant for a
reason related to ill health capability.
The Hearing
2. The Claimant gave evidence on his own behalf. The Respondent called one
witness, Stephen Todd, Assistant Operations Manager.The parties had
prepared a bundle of documents consisting of 143 pages (with some additions).
The Claimant had intended to call evidence from Malcolm Laws, a trade union
representative. However, he was unavailable as he had been infected by Covid-
19. The Claimant then obtained a short statement from a Mr Gillespie whom he
proposed to call in substitution for Mr Laws, on the basis that he supposedly
covered the same ground. However, Mr Gillespie then notified the Claimant’s
representatives that he too was unavailable due to contracting Covid-19. Mr
Ryan applied to substitute an unsigned statement from Mr Gillespie for that of
Mr Laws. Mr Nuttman objected on the basis that Mr Gillespie’s statement was
new evidence, in that his statement was different to that of Mr Laws and it had
always been open to the Claimant’s representatives to call him but who had
chosen not to. We did not permit Mr Ryan’s application. We could see no reason
why one unavailable witness’s unsigned statement should be swapped for the
unsigned statement of another unavailable witness. Mr Nuttman had not
prepared on the basis of the statement from Mr Gillespie. We said we would
read a signed statement from Mr Laws when it arrived. In the end this never
materialised and the Claimant’s case proceeded on the evidence of the
Claimant only.
The issues
3. There was some initial discussion about the issues at the outset of the hearing.
The agreed list of issues was contained on pages [37a-37c] of the bundle. We
have reproduced them in the appendix to this judgment. We explained that we
did not understand the proposed ‘PCP’ at paragraph 4.3.1 of the agreed issues.
Mr Ryan agreed that it made no sense. He applied to amend the issues to rely
on two alternative PCPs: the first was a ’requirement for consistent attendance
at work to fulfil the duties of the role’ and the second was the Respondent’s
practice of issuing notice of dismissal to absent employees at the 12 weeks of
absence. Mr Nuttman had no objection to amendment to include the PCP but
objected to the application to add the second on the basis that the Respondent
would be prejudiced in the proceedings and that this prejudice would outweigh
any caused to the Claimant in not allowing the amendment. He submitted that
the Respondent would be unable to deal with issues such as whether there was
Case Number: 2415079/2019
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substantial disadvantage to other non-disabled employees; and that had it been
notified earlier the Respondent would have been able to investigate whether
this was a practice that was applied in other cases. We adjourned to consider
the application. We agreed with Mr Nuttman and allowed the Claimant to amend
the PCP to include the first but not the second and gave our reasons to the
parties at the time.
4. There was no dispute as to whether the reason for dismissal in this case related
to capability. Mr Nuttman confirmed also that there was to be no issue taken as
to whether the Claimant’s dismissal was caused by his own actions. As to the
wrongful dismissal claim, Mr Ryan indicated that the Claimant’s case was that
the notice issued on 18 April 2019 had been withdrawn and it was the letter of
26 July 2019 that terminated the Claimant’s contract of employment and that in
doing so the Respondent failed to give the requisite 12 weeks’ notice of
termination.
Findings of fact
5. Having considered all the evidence before it (written and oral) and the
submissions made by the representatives on behalf of the parties, the Tribunal
finds the following facts.
6. The Respondent is a bus transport operator and a subsidiary of Stagecoach
Group plc. It operates bus services in Newcastle, South Shields, Sunderland,
Hartlepool and Teesside. The Claimant was employed as a Bus Driver from
June 1989 until his employment was terminated in July 2019.
The Respondent’s policies
7. The Respondent has a policy in place for the management of, among other
things, long-term sickness absence: Attendance Policy & Procedure (pages
49-58). The policy explains that a manager will hold a meeting with the
employee after 4, 8 and 12 weeks of sickness absence.
8. In respect of the third interview (after 12 weeks’ absence) the policy states:
“At the third interview at the end of twelve weeks the manager will:
• Ascertain what progress has been made
• Review any medical reports
• Establish the likely duration of the absence
• Remind the employee that the employment may be at risk
• If appropriate, set a date for a further review (particularly bearing in mind
any impending medical appointments) and a date at which point
dismissal (with or without pension depending on medical opinion) will be
considered if the employee is still unable to return to work. It should be
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