Employment Tribunal Rejects Unfair Dismissal and Race Discrimination Claims

OUTCOME: Dismissed

Case Number: 6016156/2024

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

East London Hearing Centre

On:

16-19 September 2025

Before:

Employment Judge S Iman Members: [NAME],

[NAME]

For the Claimant: [redacted] For the Respondent: [redacted]

The Employment Judge gave judgment on behalf of the panel on the 19 September 2025. These written reasons have been requested in accordance with Rule 60(4) of the Employment Tribunal Rules of Procedure 2024.

REASONS

1. The claims of unfair dismissal and race discrimination were not well founded and were dismissed. The claim of unlawful deduction of wages was withdrawn at the commencement of the hearing following a settlement of that aspect of that claim between the parties. Background 2. The Respondent is a specialist in equipment rental and an expert provider of people, services and support, principally for the infrastructure, construction, housebuilding and energy markets. It employs around 2660 employees in the United Kingdom.

Case Number: 6016156/2024

2 3. The Claimant was employed by the Respondent from 14 July 2000, until 15 August 2024, when he was dismissed on grounds of ill-health capability. Throughout his employment, the Claimant was based at the [NAME] of the Respondent, in Canning Town, London, as a Driver/Branch Assistant.

4. The concerns centred around his ongoing capability to carry out essential duties due to a longstanding back condition.

5. On 20 February 2024, the Claimant was issued with a ‘Letter of Concern’ for frequent absences, totalling 29 days over 4 occasions in the period between March 2023 and January 2024, three of which were for a back problem and one for cold/flu/tonsilitis.

6. On 26 February 2024, the Claimant raised a grievance concerning complaints around how his return to work from absence on 19 February 2024 had been handled by [NAME], Canning Town Branch Manager.

7. Specifically, the Claimant said that. Following his return to work at 8am on 19 February 2024, a return-to-work interview had not taken place until 3:25pm that day, at which point Mr [APPELLANT] completed a return-towork form with the Claimant whilst sat in a parked van, and then was provided with the ‘Letter of Concern’ mentioned above, to the Claimant; confirming that any further absences would be unpaid.

8. On 19, 20 and 21 February 2024, the Claimant was given tasks to complete which agitated his condition, without assistance.

9. By letter of 7 March 2024, the Claimant was invited to a grievance meeting on 11 March 2024, which was chaired Mr [APPELLANT], Business Support Manager). The Claimant confirmed he did not wish to be accompanied at the grievance meeting.

10. Mr [NAME] found that there was a lack of communication by Mr [APPELLANT] regarding the suspension of the Claimant’s pay going forwards. The issuing of a ‘Letter of Concern’ was in line with sickness absence procedures; and within the return-to-work form. The Claimant confirmed that he was fit to return to full duties.

11. The Claimant’s grievance was partially upheld, concerning the fact that the conversation did not take place in the office but instead was held in the van and miscommunication around suspension of pay. The remainder was not upheld. This was confirmed in an outcome letter of 2 April 2024.

12. The Claimant was reminded of his right of appeal, which he did not exercise.

13. Following the Letter of Concern being issued, the Claimant had three further periods of absence totalling 20 days relating to a back problem, on 19-26 April 2024; July 2024, 15-31 July 2024.

14. By letter of 29 July 2024, the Claimant was invited to attend a welfare meeting on 1 August 2024.

Case Number: 6016156/2024

3 15. On his return to work from the most recent period of absence, the Claimant was given the option of having a colleague work alongside him for 2-3 days per week as a temporary measure, to support him when needed whist awaiting OH input. An ill health and capability meeting was held on the 15 August 2024.

16. The [APPELLANT] brought claims of unfair dismissal, direct race discrimination, failure to offer suitable alternative roles and failure to pay redundancy pay.

17. The Respondent maintained that dismissal was for the potentially fair reason of capability and denied discrimination. They maintained that dismissal was reasonable considering the [APPELLANT] description of his symptoms and their effect on his ability to do all aspects of his role. None of their decisions related to race, and any comparator would have been treated in the same way. In respect of the unlawful deduction of wages, this matter was settled between the parties at the start of the hearing and withdrawn by the Claimant.

The Law

18. The Tribunal had several issues to determine as set out in the list of issues including in summary: the principal reason for dismissal; whether dismissal fell within the band of reasonable responses and whether a fair procedure was followed.

19. The key questions were was the employer acting within the band of reasonable responses when determining whether or not dismissal is a fair sanction. The Tribunal was reminded that it is not for the Tribunal to substitute its own view of the appropriate penalty for that of the employer as per the EAT in Trust [COMPANY] v Aquilar [1976] IRLR 251 at [24]:

"It has to be recognized that when the management is confronted with a decision to dismiss an employee in particular circumstances there may well be cases where reasonable managements might take either of two decisions: to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss that they have acted 'unfairly' because there are plenty of situations in which more than one view is possible…".

20. The fact that other employers might reasonably have been more lenient is irrelevant: [COMPANY] v Swift [1981] IRLR 91.

21. The reason for dismissal is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee ([NAME] v [NAME] [1974] ICR 323).

22. [NAME] is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the person is incapable or incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent ([COMPANY] v Taylor [1978] ICR 445).

23. The Tribunal further reminded itself that before an employee is dismissed on the grounds of ill health it is necessary that they should be consulted and that steps taken by the employer to discover the true medical position. The employee may wish to seek medical advice on his/her own account. There are many possibilities. If the employee is not consulted, and given an opportunity to state his case, an injustice may be done (East Lindsey District Council v Daubney [1977] ICR 566).

Case Number: 6016156/2024

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24. The tribunal must determine whether in the particular circumstance of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: (Iceland [COMPANY] v Jones [1983] ICR 17).

Discrimination

25. Section 13(1) Equality Act 2010 provides: [NAME] (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

26. Section 23(1) Equality Act 2010 provides: On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

Documents 27. The Tribunal had regard to the following documents:

a) The Claimant’s witness statement;

b) [APPELLANT] witness statement;

c) [NAME] witness statement;

d) [NAME] witness statement;

e) Bundle of documents running to 290 pages. Witnesses 28. We heard evidence from the Claimant and from the Respondent’s witnesses Mr [APPELLANT], Miss [APPELLANT] and Mr [RESPONDENT]. We found the Respondent’s witnesses all to be consistent and reliable and credible. We found that the Claimant was fixated in his evidence and often changeable in his evidence. For example, he would accept that some statements had been made by him in the interviews and then later on in further questioning state that he did not make those statements and they had been completely taken out of context. Findings of fact 29. The Tribunal considered the documentation which recorded the conversations held with the Claimant during the meetings with the Respondent. Though the Claimant at times seemed to distance himself from the comments recorded and/or state that his words had been taken out of context (such as the collapse at work and the reasons for that) or that in fact certain things were not said, we found that the documents were accurate and reliable record of what had been said at those meetings. We found no evidence of any motivation to embellish, fabricate or misrepresent what the Claimant

Case Number: 6016156/2024

5 had said. We considered that the Respondent’s witnesses were genuinely seeking to find a suitable resolution and enter meaningful consultation with the Claimant.

30. We find that there were opportunities offered to the Claimant to explore other roles, but the Claimant decided not to take up these opportunities such as the Respondent introducing the Claimant to [APPELLANT] who was recruiting for a sales role within the company.

31. We find that at the welfare meeting, the Claimant said that he had been diagnosed with a spinal condition in 2009 that he had episodes of sciatica, including whilst driving and one incident in which he collapsed at work. His condition was worsening over time and being at work was making it worse namely that it was degenerative and that his spine “was crumbling away”

32. We find that the [APPELLANT] said that, in February 2024, he experienced Sciatica whilst driving and more recently, in July 2024, he found that he was unable to stand up straight. The [APPELLANT] confirmed he used a back brace to assist him in managing his symptoms and continued to take prescribed medication.

33. We find that the [APPELLANT] explained that he needed to take time off if is symptoms were exacerbated. He stated that he found lifting and driving could make his symptoms worse.

34. We find it was confirmed that physiotherapy was something which [NAME] may recommend following their assessment. We find that physiotherapy had not been previously offered to the Claimant by the Respondent given that at this stage the Claimant had not seen [NAME] and therefore the Respondent would not have been in a position to offer physiotherapy.

35. We also find that prior to the welfare meeting on 1 August 2024, the Claimant was referred to [NAME] however, after three appointments had not been attended, the referral was cancelled due to the Claimant’s failure to engage in the process. The referral was made on the 16 May 2024 and efforts to engage the Claimant continued until 01 July 2024. These efforts included [NAME] making attempts to contact the Claimant and re-arranging appointments to facilitate the Claimant’s attendance.

36. We therefore found that [APPELLANT] failed to engage with the [NAME] review or the deployment process. We found that the respondent took reasonable steps in order to secure an [NAME] appointment, but it was the claimant that did not engage. The evidence before is demonstrated clearly the efforts regarding scheduling appointments had been made as had attempts to communicate with the claimant to secure his attendance.

37. We find that at the capability meeting on 15 August 2024 with [APPELLANT], the Claimant was informed that an outcome could be the termination of his employment. The Claimant discussed the difficulties he had in carrying out tasks such as lifting, pushing, pulling or using vibration tools. The risks whilst driving were also discussed.

38. The [APPELLANT] confirmed in his evidence that he did not reply to questions around driving, resulting in serious injury to himself or others.

Case Number: 6016156/2024

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39. We did not find any evidence of a request for the second meeting being postponed.

40. We accept Mr [APPELLANT] evidence that during the investigation, the Claimant did not ask for any help on his return to work .We found that at the ill heath capability meeting the [APPELLANT] said that he would be putting himself at risk without an assistant and we found that temporary support had been put in place to assist the Claimant whilst the matter was being addressed, namely the assistance of another to assisting with lifting.

41. We find that there were no other vacancies at the [NAME], and other than a Sales role which the Claimant had not yet applied for. He was informed that interviews were taking place shorty and was encouraged to contact the individual to discuss the role.

42. We accept the Respondent’s evidence and find that the Hire Manager role was not held for Mr [NAME] which we accept and find as a matter of fact.

Unfair Dismissal 43. It is clear from the evidence before us that the reason for dismissal was the Respondent’s belief that there were capability issues in respect of the Claimant and that it was no longer safe for the Claimant to continue in his position. We further concluded that the Respondent’s conclusion in the Claimant’s incapability was reasonable. The Respondent had conducted an assessment of the Claimant’s ability to do the job based on the information available to them at that relevant time. We considered that they were entitled to reach the decision they did.

44. The Claimant also informed the Respondent what the [NAME] had told him, namely that he had a degenerative spinal condition. It was the Claimant that volunteered this information and said he was getting it worse and that he could not do the manual handling part of the role.

45. The lack of direct medical evidence available to the Respondent was due to the Claimant not engaging with the Respondent’s process and being elusive and not showing genuine efforts to attend appointments.

46. As the Claimant did not engage with the process, we accept that after the repeated attempts made, it was not unreasonable for the Respondent to continue in the absence of the direct medical evidence.

47. We consider the process followed was thorough - the Respondent held both a capability and welfare meeting. We accept that Mr [NAME] was faced with a deterioration in the situation in respect of the [APPELLANT] condition and had to seriously give consideration to the ability to carry out the role and the safety of driving.

48. In his evidence he explained even if the Claimant could drive, it was not feasible to employ a second person to do the other parts of the job he was unable to carry out. Mr [APPELLANT] believed that driving was a risk for the Claimant and other road users. He also stated that he could not live with himself if he created further injury to the

Case Number: 6016156/2024

7 Claimant if he ignored what the Claimant had stated about his degenerative condition.

49. We accept that the evidence reasonably indicated a lack of capability in the role. That the driving and manual handling were exacerbating symptoms and could occur with a sudden onset. As mentioned above, we found that the Claimant did not respond in interview when asked “what if something were to happen whilst driving and that he could kill himself or someone else if his back seized or his sciatica kicked in”. The claimant did not deny and evidence not replying to this question, and it demonstrated clearly that there was a discussion at this meeting in respect of his symptoms was consistent with what the respondent stated had arisen out of information that had been volunteered by him.

50. We accept that the Respondent could not reasonably rely on the [APPELLANT] statements that he was fit for work. The [APPELLANT] later statements that the condition was “not as bad as was made out”, “nothing has changed since he was diagnosed” were not consistent with his earlier comments regarding the difficulties and the degeneration.

51. We consider it was reasonable for the Respondent to proceed in the absence of evidence from a medical practitioner, and it was reasonable for them to assume that the advice was likely not to be obtained.

52. We accept that the [APPELLANT] gave his own medical evidence to the Respondent in respect of what he communicated to his own [NAME] and there was no reason for the Respondent not to rely on this, namely that it was degenerative and it would not improve.

53. The [APPELLANT] explained in his evidence that he completed a driving job on the morning of the day of dismissal and this was evidence of his capability. We accepted that this was evidence of a short, slow drive with no manual handling and therefore would not have undermined the Respondent’s reason for dismissal as this was not indicative of him being able to carry out the duties of the role.

54. The Claimant made reference in his evidence to the use of [APPELLANT] and that the Respondent could have permitted him to assist the Claimant longer term. Though we accept that Mr [APPELLANT] assisted the Claimant at times, we also accepted that he was needed to work alongside other drivers where two-person lifting was required and it would not have been reasonable to require him to assist the Claimant at all times. Furthermore, this did not address the risk in respect of the safety of driving when symptoms were exacerbated or occurred on sudden onset.

55. The Claimant was struggling to carry out manual handling, nor was it safe to permit him to drive. These were key duties for the role he was employed. We considered that the Respondent carried out a fair and reasonable process given both the capability and welfare meeting were held in which the Claimant was invited to comment. In all the circumstance we consider that the decision to dismiss was reasonable.

Case Number: 6016156/2024

8 Race discrimination

56. The [APPELLANT] maintained throughout the hearing that he should be paid the same as [NAME] and that he had been differentiated on the basis of his race. The documentation before the Tribunal demonstrated that [NAME] was not paid the same as the claimant. In 2021 Mr [APPELLANT] commenced employment, he was paid £20,178. At that time, the Claimant’s salary was £23,740.

57. The Claimant’s position was that if he was not of black race, the Respondent would not have taken his words out of context – they would give him an opportunity to gain a different position within the company.

58. There was no evidence before us from which it could be concluded that race was a factor in the Respondent’s conduct.

59. The Claimant also maintained that he had been discriminated against by not being offered the Hire Manager role. We accept that Mr [NAME] is not an appropriate comparator. He does not share the Claimant’s impairment, and he was already appointed in a hire controller role from March 2022 which involved responsibilities that were distinct from the Claimant. Mr [APPELLANT] situation was also different in that he was not at risk of dismissal.

60. We accept that there would need to be relevant competencies demonstrated as the Manager role would not be similar to the Claimant’s driver role. The Tribunal also heard that it was three levels of progression above the driver role.

61. The tribunal heard that there were between 5 and 10 interviews with internal and external candidates. In those circumstances, there was no evidence before us to demonstrate that the Claimant was treated less favourably because of race.

62. We accepted the Respondent’s position that the Claimant’s comparator was someone that shares the circumstances of his impairment and is in the same role as him but not sharing his race. In circumstances in which (a) that comparator could not do the role other than driving, and (b) had given cause for concern over the safety of driving.

63. There was no evidence from which it could be concluded that that person of a different race would have been retained in employment by the Respondent, nor could it be concluded that race was a factor in the decision to dismiss.

64. The Claimant also stated that he should have been paid redundancy and made reference to Mr [NAME] as a comparator. He considered that the fact that he was not given redundancy and was dismissed was due to his race. We accepted the Respondents position that Mr [NAME] was not an appropriate comparator. Mr [NAME] was at risk of redundancy following absorption his branch into another. Mr [NAME] requested voluntary redundancy his circumstances were entirely different to the Claimant though it was for health reasons he choose redundancy.

65. The Tribunal therefore applied the hypothetical comparator test but considered that again the test was not met in that the Claimants role was not subject redundancy and therefore he did not have the option of volunteering for redundancy as would apply

Case Number: 6016156/2024

9 to a hypothetical comparator not of the same race. Further, for clarity there was no evidence before us that race was a factor at all in respect of the decision to dismiss as applied to the Claimant. Accordingly, the claims are not well founded and are dismissed.

____________________________________________ Employment Judge S Iman Dated: 29 April 2026

Case Number: 6016156/2024

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

East London Hearing Centre

On:

16 – 19 September 2025

Before:

Employment Judge Iman Members:

[NAME],

[NAME]

Claimant: [redacted]

Respondent: [redacted]

The Employment Judge gave judgment on behalf of the panel as follows:-

JUDGMENT

The claims of unfair dismissal and race discrimination were not well founded and were dismissed. The claim of unlawful deduction of wages was withdrawn at the commencement of the hearing.

Approved by:

Employment Judge Iman

Dated: 20 October 2025

Case Number: 6016156/2024

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] RECONSIDERATION

In exercise of powers contained in rules 68 and 71 of the Employment Tribunals Rules of Procedure 2024 (“Rules”), the Claimant’s application of 30 December 2025 for reconsideration of the judgment given on the 19 September 2025 and issued on the 20 October 2025 is refused because there is no reasonable prospect of the original decision being varied or revoked.

REASONS

The claims of unfair dismissal and race discrimination were not well-founded and were dismissed. The claim of unlawful deduction of wages was withdrawn at the commencement of the hearing.

Principles of Reconsideration

1. Rules 68 to 71 of The Employment Tribunal Procedure Rules 2024 (the “Rules”) provide:

Reconsideration of judgments

Principles

68(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so.

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(2) A judgment under reconsideration may be confirmed, varied or revoked.

(3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion.

Application for reconsideration

69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of –

(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or

(b) the date that the written reasons were sent, if these were sent separately.

Process for reconsideration

70.- (1) The Tribunal must consider any application made under rule 69 (application for reconsideration).

(2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal.

(3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application.

(4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice.

(5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.

Reconsideration by the Tribunal on its own initiative

71. Where the Tribunal proposes to reconsider a judgment on its own initiative, it must inform the parties of the reasons why the decision is being reconsidered and the judgment must be reconsidered (as if an application had been made and not refused) in accordance with rule 70(3) to (5) (process for reconsideration).

2. An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (Rule 68).

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3. Rule 70(2) empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v [NAME] and anor [2016] EWCA Civ. 714 in July 2016 where [NAME] LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored.

4. In particular, the courts have emphasised the importance of which militates against the discretion being exercised too readily; and in [NAME] v [NAME] [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”

5. Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a [COMPANY] exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” In common with all powers under the Rules, preliminary consideration under Rule 70 (2) must be conducted in accordance with the overriding objective which appears in Rule 3.

6. The interest of justice in this case should be measured as a balance between both parties; both the applicant and the respondent to a reconsideration application have interests which much be regarded against the interests of justice (Outasight VB [COMPANY] v Brown [2014] UKEAT/0253/14).

7. In Brown, Her Honour Judge Eady QC said that the general public also have an interest in such cases because there should be an expectation of the finality of litigation.

8. Consequently, the provision of evidence said to be relevant after the conclusion of the hearing will rarely serve to alter or vary the judgment given unless the party seeking to introduce the evidence can show (Ladd v Marshall [1954] EWCA Civ. 1):

8.1. the evidence could not have been obtained with reasonable diligence for use at the trial;

8.2. the evidence would probably have an important influence on the result of the case; and

8.3. the evidence must be apparently credible.

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Grounds and reasons of reconsideration application

9. The application for reconsideration is made on the basis, in summary that the claimant: [redacted] consequences of withdrawal. “would like the Tribunal to consider further evidence - namely voicemail recordings and audio recordings”.

Decision on the reconsideration application

10. In respect of the withdrawal of paragraph 3.3. The tribunal has a clear recollection of this at the commencement of proceedings. The Claimant was given an opportunity to address any matters if they were unclear to him to the tribunal within the confines of without prejudice/settlement discussions between the parties. The parties came to a settlement and Mr [APPELLANT] was content to withdraw that aspect of the allegations. There was no indication given at any stage that Mr [APPELLANT] was unaware or unclear about the terms of the settlement.

Accordingly, that part of the application to reconsider is dismissed and nor was it apart of the determination of the claim for the tribunal.

11. It is not the purpose of reconsideration to allow a party to dispute a determination that a party disagrees with. It is a fundamental requirement of litigation that there is certainty and finality. If conclusions made are disputed with regard to whether a correct interpretation of the law was made, they are matters for an appeal which the Respondent is able to make to the Employment Appeal Tribunal.

12. In respect of the additional evidence provided there's no clear explanation submitted by the Claimant as to why these recordings were not provided to the Tribunal/Respondent in advance of the hearing, nor am I persuaded that these recordings would result in any important influence on the result of the case. The voicemail relates to one of the witnesses, Mr [NAME] rearranging a grievance meeting and the covert recordings relate to a [NAME] having a conversation with a third party who is not audible regarding Mr [APPELLANT]’s condition.

13. Mr [APPELLANT] gave evidence in the hearing in respect of his understanding of the calls and mentioned that he had the covert audio recordings during the proceedings but indicated that you would not be able to hear the person being spoken too in respect of what he understood had been communicated.

14. Our findings are clear in respect of the Tribunal’s findings in respect of whether physiotherapy was offered to Mr [APPELLANT] and the comments made within meetings. The points of significance were considered and addressed at the hearing. There is a degree of certainty that's required in proceedings and accordingly their applications for reconsideration fail and are dismissed.

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15. In view of the above, the determination of this application is that the original judgment is confirmed.

_____________________________ Employment Judge S Iman Dated: 29 April 2026