Zulhayir v JJ Food Services Ltd

An employer cannot rely solely on an employee’s contractual duty to notify a change of address where an important recorded-delivery letter has been returned undelivered. If a readily available alternative means of communication exists, the employer must take reasonable steps to use it.

Failing to contact known solicitors acting for the employee may render a capability dismissal procedurally unfair. Where, at the time of dismissal, the employer also fails to ascertain whether the employee wishes to return or to offer suitable alternative employment, that omission may constitute disability discrimination.

The claimant, a delivery driver who had suffered serious spinal injuries at work, moved address without informing his employer. The employer’s letter asking whether he wished to remain employed was sent by recorded delivery and returned undelivered. The employer knew that the claimant was pursuing a personal-injury claim through solicitors but did not use that route to communicate.

An earlier appeal had reversed a strike-out of the claim. On remission, the Watford Employment Tribunal dismissed the claims for unfair dismissal and disability discrimination, while awarding notice pay and holiday pay. It held that the employer had reasonably lost contact with the claimant and that a suitable transport-administrator role had been made known to him.

The appeal concerned whether those conclusions were perverse and whether the employer’s conduct in 2006 and 2009 was fair and compliant with its duty to make reasonable adjustments.

1. Appeal allowed. The Employment Tribunal’s conclusion that the employer had done all that a reasonable employer needed to do was perverse. Although the threshold for perversity is strict, the employer’s recorded-delivery letter of 28 June 2006 had been returned undelivered and it knew that the claimant had solicitors in an ongoing personal-injury claim.

2. The employer should have used the readily available alternative of contacting those solicitors, either to pass on the letter or to seek assistance in establishing why it had been returned. A contractual clause requiring the employee to report a change of address did not excuse that failure. The prior difficulties of rehabilitation consultants in contacting the claimant reinforced, rather than answered, the need to consider that he may have changed address.

3. The dismissal was still more plainly unfair in May 2009. The employer then took no step to ascertain whether the claimant wished to return to work, despite the continuing personal-injury proceedings, and made no offer of alternative employment. The Tribunal accordingly declared the 2009 dismissal unfair and held that the failure in May 2009 to offer alternative employment was an act of disability discrimination.

4. The claimant’s case of a continuing failure to make reasonable adjustments before 2009 failed. The Tribunal was entitled to find that the potential transport-administrator role had been made known to him in 2005, but that he was then unfit and unwilling to pursue a return to work. The evidence did not permit a finding about his fitness in mid-2009.

5. The unfair-dismissal and disability-discrimination claims were remitted to the same Tribunal for assessment of remedy, subject to members’ availability, applying the remission guidance in [2004] IRLR 763.

1. Employment Appeal Tribunal — Allowed the appeal, declared the dismissal unfair, found disability discrimination in the failure to offer alternative employment in May 2009, and remitted remedy to the same Tribunal.

2. Watford Employment Tribunal — In February 2012, dismissed the unfair-dismissal and disability-discrimination claims, while awarding notice pay by consent and holiday pay.

3. Employment Appeal Tribunal — An earlier appeal reversed the strike-out of the claim at a pre-hearing review and remitted the matter for a merits hearing.