IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

Mr Carlos Rodrigues

CLAIMANT

 

AND

 

 

Cimandis Food Service

RESPONDENT

 


 

JUDGMENT


 

 

Reference:                 [2018] TRE 080

 

Hearing Date:                30 October 2018

 

 

Before:                           Advocate C R Davies, Deputy Chairman

                                               

 

Appearance:

For the Claimant:           In person

For the Respondent:     Mr John James

 

 

THE DECISION

 

 

The Tribunal finds that the Claimant was not unfairly dismissed.

 

 

 

THE REASONS

 

The Background

 

  1. The Claimant was employed by the Respondent as a Driver/Storeman from March 2000 until his employment was terminated on 25th April 2018.  The reason given for the termination was that the Claimant was unable to fulfil his duties because of his ill health. The Claimant applied to the tribunal for compensation for unfair dismissal.  There were no other claims, all contractual amounts due have been paid.  This is not a case about discrimination due to disability.

 

  1. The Claimant had a good relationship with his employer.  Since 2016, he had suffered from a chronic health problem that affected the skin on his hands and feet.  When it flared up, the condition severely limited the Claimant’s ability to drive and to make deliveries and he was signed off for considerable periods of time.  The employer fully accepted that the Claimant’s illness was genuine and caused him significant discomfort, sometimes to a point where he struggled to walk.  During the year preceding the capability process, the Claimant had been absent from work due to illness for 163 out of 312 contracted working days.

 

  1. The employer felt that an occupational health referral would be beneficial and the Claimant agreed.  In September 2017, the Claimant underwent an assessment with Medigold Health, the employer’s Occupational Health provider.  Medigold provided advice following an assessment that was conducted over the telephone, as was their normal practice.  A report was received from Medigold Health on the 4th October 2017.  A qualified occupational health adviser wrote it. 

 

 

  1. The advice given by Medigold Health was as follows:

 

 

    1. The Claimant was suffering from psoriasis, which was a long lasting, chronic disease that is thought to be linked to the immune system.  It usually involves periods with mild or no symptoms, followed by flare-ups.  There is no cure, but treatments are available.  At the time of the consultation the Claimant reported a 75% improvement in his condition;

 

    1. Medigold recommended that the Claimant should be provided with breathable footwear.  The employer did not provide the Claimant with new footwear, but they did offer to pay for footwear when this was purchased by the Claimant;

 

    1. Medigold hoped that the condition would settle over a four-week period, which would include a forthcoming holiday, and that the Claimant would then be able to come back to work.  However, Medigold advised that the position was uncertain.  If the condition did not resolve, management were advised to consider a second referral, which might include a face-to-face appointment as the Claimant had expressed a preference for a meeting.

 

 

  1. The Claimant’s condition improved significantly after his holiday and he returned to work in October 2017, but he quickly suffered another flare up.  In the winter months of 2017/18, the employer was able to move the Claimant into their dry warehouse to cover staff absence and his condition improved.  The employer could not keep the Claimant in the warehouse for long due to staff requirements, but whenever the Claimant tried to go back to his normal duties, the condition flared up again.

 

 

  1. In February 2018, a second Occupational Health Assessment was carried out.   The employer was approaching its busiest time of year and was concerned that the business could not continue to accommodate the Claimant’s illness.  The consultation was again undertaken by telephone, there is no reference in the report to a further request for a face-to-face consultation. The written advice given by Medigold on this occasion was:

 

 

    1. The Claimant was worried that as soon as he started working on deliveries his symptoms would flare up again;

 

    1. The Claimant was fit to return to work but it was likely that his symptoms would flare up again; 

 

 

    1. It was recommended that the Claimant’s role be adjusted so that he would work in the storeroom rather than go out on deliveries, but it was recognised that this would only be possible if management could accommodate it.  If that was not possible, then a period of four weeks away from deliveries to allow the Claimant’s feet to completely heal would be beneficial.  If there was then a flare up on a return to deliveries, future absences would be likely.

 

 

    1. In conclusion, it was likely that the Claimant would have to manage this condition for the rest of his life.

 

 

  1. The employer moved the Claimant into the warehouse for a period of four weeks.  He appeared fully recovered at the end of that period.  The Claimant was returned to his normal duties, but the condition flared up yet again.

 

  1. The employer, guided by its HR adviser, decided that a formal capability process was needed.  On 28th March 2018, a capability investigation was conducted by Mr Pereira.  This led to a formal capability meeting on 25th April 2018.  The Claimant was warned that this process could lead to his dismissal.  After this meeting, which was attended by the HR adviser, the employer decided to terminate the Claimant’s employment.   The Claimant appealed this decision, an appeal hearing took place in June 2018 and the dismissal was upheld.  The process was fully documented.

 

 

  1. The employer felt that they had done everything reasonable to help the Claimant.  The business needed a storeman/driver who was fit to drive and make deliveries as an essential part of his duties.  There was no position available in the dry warehouse.  It was not practicable for the business to create a role for the Claimant in the dry store whilst recruiting an additional delivery man/driver.  Alternative roles were considered, but the Claimant had turned them down.

 

 

  1. The Claimant did not make any complaint about the process used by the employer, but felt that the decision to dismiss was wrong.  He felt that he should have been allowed to work in the dry warehouse as long as he needed to, and that he would have recovered fully given the opportunity. 

 

 

  1. The employer can only be judged on the basis of what they knew at the time that they were making decisions about the Claimant’s employment.

 

The Evidence

 

  1. I was provided with a file of documents, which was very useful. Where I have found a document to be particularly relevant, I have referred to it in these reasons.  I heard evidence from a number of witnesses, each of whom provided a written statement and gave evidence on oath.  The Claimant gave evidence to support his case. John James (the Managing Director), Eduardo Pereira (Operations Manager) and Natalie Marshall (HR Business Partner) gave evidence for the employer. I felt that all of the witnesses gave truthful evidence, although they inevitably saw things differently.   I set out below the particular evidence I felt to be relevant to the case.

 

  1. I would summarise the Claimant’s evidence as follows:

 

    1. Mr Rodrigues felt that the Employer had failed to make reasonable adjustments for his condition.  The employer should have bought the breathable footwear, rather than just offer to refund the cost.  The employer should not have required him to drive when that made his condition worse.  Driving was only part of his job (he accepted that it was a large part) and he should have been allowed to undertake other duties until he had completely recovered.  The employer should have kept him in the dry warehouse where he would have recovered given enough time.  He was a long standing employee and the employer should have done more to keep him;

 

    1. The Claimant said that he had told his manager, Mr Pereira, that he did not feel that he should be given driving duties.  He had been told to see his doctor if he was not feeling well;

 

 

    1. The Claimant did not feel that the Medigold assessment should have been done over the telephone.  He felt that there should have been a face-to-face assessment.  In any event, the Claimant did not feel that the employer had correctly followed Medigold’s advice.  Whilst adjustments had been made, they had not been put in place for long enough.  He had taken two months off following his dismissal and his condition appeared to have fully resolved, allowing him to take up new employment as a deliveryman/driver which has been successful;

 

 

    1. The Claimant did not feel that the alternative jobs offered to him were suitable.  He did not have the skills needed to work in telesales.  He believed that he had been offered a job in the freezer section (in fact the employer had referred to work in the chilled section) but he was unable to do that because of the cold.

 

 

  1. The Claimant provided a letter dated September 2018 from his specialist at the Hospital, Dr Kukula.  It is clear from that letter that Dr Kukula felt that the Claimant had perhaps been treated unfairly, but she of course has no particular knowledge of the employer’s business or the problems that it has faced.  Dr Kukula had been treating the Claimant since 2017.  She confirmed a diagnosis of psoriasis and felt that the Claimant could be in remission for a number of years once his condition had stabilised.  She felt that the claimant could undertake a different role.  He was improving and was responding to treatment.  The employer did not have Dr Kukula’s letter at the time that it was making decisions in relation to the employment, although it did have some medical information and documentation.

 

 

  1. Mr James struck me as a compassionate and careful manager.  I would summarise his evidence as follows:

 

    1. Mr James is the Managing Director of the business and was appointed to this role in January 2017.  He also undertook the appeal process;

 

    1. The Claimant’s role was a ‘blended role’, which required him to drive as well as undertaking other duties.  The job description made that clear, in fact the ability to make deliveries was the main element of the role – the employee had to be able to make deliveries by vehicle and on foot;

 

 

    1. The employer had been able to move the Claimant into the dry warehouse for short periods, but this was a temporary solution.  The employer needed the Claimant to be able to perform his duties.  The medical advice given was that this was a chronic and potentially life-long condition and as a business they could not accommodate his absences any longer;

 

 

    1. The operations team was made up of approximately 25 members of staff (including managers). The team was too small to sustain high levels of absence and the Claimant’s ill health had created issues for the team. There was no position in the dry warehouse.  There was only one dry store/warehouse man employed in the business.  The Claimant was not willing to drive a forklift truck.  The Claimant was offered an alternative role in the cold produce section, or in telesales.  The Claimant felt unable to accept those roles.  There was no role offered or available in the freezer section, which was fully staffed.

 

 

    1. Mr James felt that the employer had done everything they could.  This was not a decision that had been taken lightly.  When conducting the appeal he had considered whether the employer had treated the Claimant fairly, whether they had followed their own policies and whether they had explored all possibilities and alternatives.   Mr James decided that this was the case and he upheld the dismissal.

 

 

  1. I would summarise the evidence of Eduardo Pereira as follows:

 

    1. Mr Pereira is the Operations manager for Cimandis Limited; an experienced manager, he is responsible for managing the Operations Team, including the Storeman/Drivers.  Mr Pereira undertook the capability investigation and meeting.  He kept in contact with the Claimant and they spoke regularly about his medical condition.

 

    1. Mr Pereira felt that the employer had followed the advice given by Medigold as best they could.  This had not resulted in a sustainable improvement in the Claimant’s condition.  The employer could not move the Claimant to the warehouse.  When he was based there for periods, his other duties had to be given to other members of staff.  This was not sustainable and the employer would have been forced to hire another staff member to cover the role.  That was not commercially viable.

 

 

    1. The Claimant had told him (and others) during the process that he felt his condition was life-long and that he would only be able to work in the dry store.  He did not want to drive forklift trucks.  At the time he felt that he would not be able to do deliveries or to work in the cold store, he mentioned that he also suffered from arthritis.  The Claimant did not want to work in telesales as an alternative;   

 

 

    1. The Claimant pointed to the fact that the business had advertised in July 2018 for a storeman/picker.  Mr Pereira explained that this position had only become available at that point because the business was very busy.  In fact, nobody was recruited. By this time, the Claimant already had a new job.

 

  1. I would summarise the evidence of Natalie Marshall as follows:

 

    1. Ms Marshall is the HR business partner for Cimandis Limited; she is employed by their parent company and is based in the UK.  Ms Marshall provides support and advice to the Jersey business when required.  She had been aware of concerns in relation to the Claimant’s health since late 2016.  In 2017, Ms Marshall recommended a referral to occupation health and this was actioned.  She discussed the recommendations with the employer and was kept informed.  When the condition remained problematic, a second referral was made;

 

    1. Ms Marshall had provided advice during the capability process and felt that the employer had handled the situation appropriately.  She was involved in the capability investigation, and attended the capability meeting.

 

 

The Facts

 

  1. Having considered the written evidence, and the evidence given on Oath, I find the following to be the relevant facts:

 

    1. The ability to drive and to make deliveries was a very important part of the Claimant’s job;
    2.  

    3. Because of his health condition, the Claimant was unable to carry out these duties, and this led to problems for the employer who had to arrange cover for the work.  This was not sustainable;

 

    1. At the time of the capability process the employer (reasonably) believed that the Claimant’s condition was potentially lifelong and would be likely to flare up whenever the Claimant returned to his driving and delivery duties, causing the Claimant to be unfit for his contracted work as a storeman/delivery driver;

 

    1. At the time, there was no available role in the dry warehouse that could have been offered to the Claimant.  The employer came up with possible alternatives but these were not acceptable to the Claimant;

 

    1. To the extent that the Claimant suspects that he was dismissed because his manager wanted him “out”, I find that the reason for the dismissal was the Claimant’s capability to do his job. The employer’s witnesses suggested that the Claimant was a well-liked employee and I heard no evidence which made me think otherwise;
    2.  

    3. I find that the employer acted sensibly in arranging a referral to an occupational health specialist.  Whilst the employee would have preferred a face to face assessment there is no evidence that this would have altered the advice given;
    4.  

    5.   I find that the employer followed the advice of the occupational health adviser to the extent that they were able, bearing in mind the reasonable operating needs of the business.  The employer considered whether it could offer a role in the dry store only, but I accept that this would have required them to recruit a further driver/storeman whilst retaining the Claimant.  I find that the employer acted reasonably in deciding that this was not a viable route for the business;
    6.  

    7.   As for the position advertised in July 2018, I accept the employer’s evidence that this job only became available after the Claimant’s dismissal – by which time he had in fact already found alternative employment.

 

 

 

The Law

 

  1. The Employment (Jersey) Law 2003 provides protection from unfair dismissal.  It is for the employer to show what the reason was for the dismissal.  I am satisfied that the reason in this case was the Claimant’s capability, for health reasons, to do the job that he was employed to do. That is a potentially fair reason for dismissal.

 

  1. Having established that there was a potentially fair reason for the dismissal, I must consider whether the dismissal was fair or unfair.  I must bear in mind the size and resources of the employer and decide whether in the circumstances the employer acted reasonably.  I am required to take into account equity (fairness) and the merits of the case.  The Tribunal must not substitute its own views for those of the employer; the question is whether the employer’s decision was one that a reasonable employer could have made in these circumstances.

 

  1. The Tribunal will also look at whether the procedure used by the employer was fair.  In this case, the Claimant has not made any significant complaint about the process – his complaint is that the employer should not have dismissed him and that a reasonable employer in the same circumstances would have found another way of dealing with the situation.

 

Conclusion

 

  1. The employer in this case followed a reasonable process.  They investigated the Claimant’s health, they arranged a referral to occupational health and they arranged meetings in a way that was appropriate and enabled the employee to get his views across.  They provided an appeal process and took advice from their HR partner when they needed to.

 

  1. Due to his health, the Claimant was unable to fulfil a significant part of his duties. Based on reasonable evidence, the employer decided that they could not accommodate the Claimant’s health needs in his current position any longer and (reasonably, on the evidence available to them at the time) reached a view that the Claimant’s health was going to continue to be a problem – probably for the remainder of his working life.  For legitimate business reasons, the employer could not offer the Claimant the role that he wanted but they did consider other roles.

 

  1. I find that the decision to dismiss was a decision that a reasonable employer could make in these circumstances.  A different employer might have made a different decision, but that does not mean that the dismissal was unfair.
  2.  

  3. I have considered the facts of this case and the relevant law.  I find that the Claimant was not unfairly dismissed by the Respondent and that he is not entitled to compensation.

 

  1. The claim is dismissed.

 

 

 

Advocate C R Davies, Deputy Chairman                                                    Date: 8 January 2018

 

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