Viridor Waste v Edge

In assessing whether a conduct dismissal was fair, an Employment Tribunal must focus on the material actually available to the employer when it made its decision. Having found a genuine belief and a reasonable investigation, the Tribunal must ask whether that material reasonably supported the employer’s conclusion. It must not decide for itself what the evidence proves or substitute its own view.

A deliberate decision not to make an otherwise reasonable adjustment is a failure to comply with the duty. Time runs from that decision under Equality Act 2010, subject to the Tribunal’s just and equitable power to extend time. A possible future reconsideration does not itself make the omission continuing.

The employee, who had a chronic degenerative spinal condition, was dismissed after surveillance footage appeared inconsistent with the severe functional restrictions he had described while seeking ill-health retirement. The Employment Tribunal held that the employer genuinely believed him culpable and had investigated reasonably, but found that it lacked reasonable grounds for that belief. It therefore upheld claims for unfair and wrongful dismissal.

The Tribunal also found a failure to make a reasonable adjustment by delaying provision of a duplicate monitor screen, or “mimic”, after the employee returned to work. The employer appealed. The central issues were whether the Tribunal had substituted its own assessment of the medical evidence for the employer’s reasoning, and whether the reasonable-adjustment complaint was brought in time.

1. Appeal allowed, save for Ground 8, and the matters remitted to a freshly constituted Employment Tribunal.

2. On unfair dismissal, the Tribunal adopted the wrong approach. Once it had found that the employer genuinely believed the employee culpable and had investigated reasonably, it had to identify the information before the decision-maker and decide whether that information reasonably supported the belief actually formed. It instead assessed the medical evidence for itself, asked whether the surveillance footage was conclusive, and effectively substituted its own view.

3. The Tribunal also made material errors. It wrongly treated it as unclear whether the doctors had viewed the footage, perversely held that the doctors’ post-footage view was not an entirely different prognosis, and treated as relevant the existence of an underlying condition and medical certificates for absences. Those matters did not answer whether the employee had exaggerated the degree of his disability. The unfair-dismissal conclusion could not stand.

4. Wrongful dismissal required a different, contractual inquiry: whether the employee in fact breached an identified contractual term and, if so, whether the breach was repudiatory. That claim was also remitted because the flawed reasoning had fed into the Tribunal’s conclusion.

5. The Tribunal was entitled to find that the mimic was a reasonable adjustment which should have been made while the employee was working and suffering substantial disadvantage. Ground 8 therefore failed. However, the finding was that the employer deliberately decided not to provide it by 6 August 2012. Under section 123 of the Equality Act 2010, time then began to run. The Tribunal had to determine whether it was just and equitable to extend time.

• Employment Appeal Tribunal: allowed the employer’s appeal, except on Ground 8, and remitted the unfair-dismissal, wrongful-dismissal and time-extension issues to a fresh Tribunal.
• Employment Tribunal, Manchester: on 7 July 2014 held that the employee had been unfairly and wrongfully dismissed and that the employer had failed to make a reasonable adjustment.