Thu, 31 Mar 2022
Kawsar Zaman has successfully acted for a British Gas servicing engineer who an Employment Tribunal has found was unfairly dismissed and discriminated against (disability) by the company.
The 6-day hearing in January 2022 sitting at the Watford Employment Tribunal found that Mr Callender, an engineer with 14 years of service, was unfairly dismissed and discriminated against following a period of absence from work after suffering from knee pains (capability).
The Claimant had lodged a grievance that British Gas, the UK’s largest energy supplier, failed to make an adjustment to the Claimant’s servicing engineer role that would have allowed him to continue. Both his grievance and appeal against dismissal were rejected by the company.
The Tribunal was particularly critical of the fact that British Gas relied upon a ‘Functional Capacity Assessment’ (FCA) as the basis for dismissing the employee (that was 8 months old at the time of his dismissal appeal), despite protestations that his condition had improved and he would now ‘pass’ the FCA. They failed to obtain an updated FCA before dismissing him which would have been an easy step for British Gas to have taken.
As the Tribunal concluded:
“149. The need for an updated FCA was entirely obvious and is a step that no reasonable employer would have failed to take”.
…
150. This step was no small matter. The Claimant's functionality was central to his dismissal and whether the Respondent could make the adjustments necessary to allow his return. No reasonable employer (of the Respondent's size and with its resources) would have failed to take this step.
151. By reason of this failure, the decision to dismiss was not fair in all the circumstances of the case, taking into account the size and administrative resources of the Respondent.”
In respect of the Claimant’s successful claim under section 15 of the Equality Act 2010 (discrimination arising), the Tribunal found that:
“163. We are not satisfied the Respondent has shown that the step of dismissal was reasonably, necessary or that its aims could not have been achieved by a less discriminatory measure.
…
166. As matters stand (or stood when the decision to dismiss was made) there was a less discriminatory step that could have been taken, namely postponing the Stage 4 meeting for a short period to obtain an updated FCA before making a final decision on the Claimant's continued employment. An FCA could also have been sought at the appeal stage and before deciding whether the Claimant's dismissal should be upheld. The appeal hearing took place during what would have been Claimant's notice period, as he was paid in lieu for this.”
Kawsar cross-examined 5 senior managers of British Gas during the 6-day hearing. He was instructed by Solicitor Alexandra Mills of Pattinson & Brewer LLP.
Kawsar is regularly instructed on all aspect of employment law.
