A security guard who lost his sight has won a disability discrimination claim against Mitie after it failed to make reasonable adjustments and then dismissed him on capability grounds.
In the case of Mr C Lee v Mitie the tribunal panel said it was “struck by how little effort the respondent managers had made to retain the services of Mr Lee”, who suffered sudden and irretrievable sight loss in both eyes in 2021.
After being diagnosed with bilateral non-anterior arteritic ischemic neuropathy and registered as sight-impaired and disabled, Lee was signed off work. He was a security officer at an industrial park in Portsmouth, whose role involved waking, driving, night and shift work, manual handling and working on a computer.
He wrote to the operations manager responsible for Mitie’s south west region, Mr Houseman, in March 2021 to check Mitie had received the documents about his condition and to ask whether they had been passed on to the firm’s occupational health provider. He said he would like to come back to work and for reasonable adjustments to be made if possible.
Until March 2021, no steps had been taken to refer Lee to an OH provider or to find out what he was still capable of doing.
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Towards the end of April Lee contacted Houseman again to raise an issue about sick pay not having been paid to him. He said he had not heard from the OH provider since an initial phone call a month earlier and had submitted forms giving them authority to speak to his doctors on two occasions.
In June, Lee contacted Houseman again to ask whether he could see the OH assessment. The OH provider then contacted him offering him another appointment in July.
Lee wrote to Houseman in June to raise the issue about the lack of sick pay again and was told it would be paid into his account later that month.
Lee finally received the OH report in July 2021. It said no reasonable adjustments could be made and that he was not fit to return to work.
Lee told the tribunal that it was unclear how the OH provider could have made such an assessment as the clinician had never visited him nor his place of work to assess his capabilities.
Grievance
He submitted a grievance stating that he felt he had been treated unfairly, if not forgotten about, by Mitie. He had had no welfare checks, had to initiate all contact with management, had chased up sick pay, had chased an OH meeting and had not been contacted by Mitie’s HR department to discuss his situation, reasonable adjustments or redeployment. Only his sick pay complaint was upheld by the firm.
He said he had been left without an income and had experienced six months of uncertainty which had affected his mental health.
Houseman sent Lee a link to Mitie’s careers site. Houseman later sent him a list of possible roles including a contract in Southampton, which Lee said would be too difficult to travel to given he could no longer drive, and a night role at the University of Portsmouth which Lee felt would be unsuitable. It was also suggested that he could take up an admin role from home, but none were available.
The possibility of taking over from his manager, who had talked openly about his plans to retire soon, was considered by Lee as most of this role involved administrative work. However, the tribunal found the company did not sufficiently consider this. The manager retired only three months after Lee was dismissed from the firm on capability grounds in September.
Management failure
The employment tribunal found that managers at Mitie only took steps to find a job which a blind employee could do, rather than trying to find a job that could be adjusted to Lee’s capabilities.
Its judgment said: “We observe that the respondent is a national employer with numerous contracts for staffing in a very wide range of work areas and workplaces. They must have had to deal with making reasonable adjustments for disabled employees on numerous occasions.”
We would have expected far more active support and intervention from managers in a company this size, and far more than three suggestions of work, given the spread of the companies commercial interests and operations.” – Employment Judge Catherine Rayner
It noted that it should have been evident that Lee could use a computer because he was sending emails, while an OH practitioner should have been aware of the range of assistive technologies that could have helped Lee with computer work.
“Mitie is a large well-resourced company. It has numerous contracts in the public sector and the private sector to deliver support services. It has the same duties to its disabled employees as any other employer. We would have expected far more active support and intervention from managers in a company this size, and far more than three suggestions of work, given the spread of the company’s commercial interests and operations.”
The judge said it would have been a reasonable adjustment for the firm to delay the determination of Lee’s capabilities to allow the potential retirement vacancy to be investigated.
The tribunal was critical of the firm’s lack of action for several months after Lee’s diagnosis, when suitable vacancies might have come up.
“The respondent only started to take serious steps in respect of the claimant once the claimant had raised his grievance and once he had made comments about disability discrimination,” Employment Judge Catherine Rayner said.
The tribunal found that Lee was discriminated against because of a reason arising from his disability and that he had been unfairly dismissed.
Compensation will be discussed at a later hearing. Mitie has been contacted for a response.
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