IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
Mr Carlos Rodrigues
Cimandis Food Service
Reference:  TRE 080
Hearing Date: 30
C R Davies, Deputy Chairman
For the Claimant: In
For the Respondent: Mr
The Tribunal finds that the Claimant was not unfairly
- 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.
- 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.
- 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.
- The advice given by Medigold Health was as
- 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
- 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;
- 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.
- 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
- 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:
- The Claimant was worried that as soon as he
started working on deliveries his symptoms would flare up again;
- The Claimant was fit to return to work but it
was likely that his symptoms would flare up again;
- 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.
- In conclusion, it was likely that the Claimant
would have to manage this condition for the rest of his life.
- 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.
- 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.
- 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.
- 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.
11. 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.
- 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.
- I would summarise the Claimant’s evidence
- 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;
- 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;
- 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;
- 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 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
- Mr James struck me as a compassionate and
careful manager. I would summarise
his evidence as follows:
- Mr James is the Managing Director of the business
and was appointed to this role in January 2017. He also undertook the appeal
- 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;
- 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;
- 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.
- 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.
- I would summarise the evidence of Eduardo
Pereira as follows:
- 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
- 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.
- 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;
- 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.
- I would summarise the evidence of Natalie
Marshall as follows:
- 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;
- 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.
- Having considered the written evidence, and the
evidence given on Oath, I find the following to be the relevant facts:
- The ability to drive and to make deliveries
was a very important part of the Claimant’s job;
- 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;
- 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
- 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;
- 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
- 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;
- 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
- 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 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The claim is dismissed.
Advocate C R Davies, Deputy
Date: 8 January 2018