Graham Vare was dismissed on grounds of poor performance, but an employment tribunal found the dismissal was unfair because BT failed to take sufficient account of medical advice and offer alternative employment.
Graham had worked for BT for over 20 years and been promoted several times. In June 2010 BT started criticising his performance and began formal performance improvement plans. Graham became ill with stress and depression and was signed off work for nine months.
While absent, at the request of Graham’s Prospect rep, he was referred to the company’s occupational health adviser. The OH doctor recommended that he be moved to an alternative role with less pressure and not face performance proceedings for at least six months after a return to work.
However, shortly after, Graham was sent a further OH report that had changed significantly. It no longer recommended a role change or a delay to performance management proceedings.
The tribunal noted that between the first and second reports BT had contacted the OH service raising queries about the original report.
When Graham returned to work he was placed in the same role on a phased return, increasing his hours to full-time.
A couple of weeks after that, BT began a new performance monitoring period. Graham was dismissed within months for failing to meet performance targets, despite acceptance that his performance was improving and he had achieved many targets.
With Prospect’s support, Graham submitted a claim to the tribunal for unfair dismissal and disability discrimination. The case was heard in June. Prospect rep David Evans gave evidence and Graham was represented by barrister Stephen Marsh.
The tribunal held that BT had been unfair in saying it could not comply with the OH doctor’s original recommendations. It had been unreasonable for BT to attempt to influence the OH adviser, denying Graham the opportunity to seek an alternative role.
The tribunal found a 30 per cent chance of Graham being dismissed if no other job had been found for him. It did not find Graham disabled within the meaning of the Equality Act, so the discrimination claim was dismissed.
The case was then settled before a remedy hearing.
“The tribunal’s finding demonstrates how employers must look at all alternatives when considering dismissal,” said Prospect legal officer Marion Scovell. “Where there is evidence that the employee’s health has an impact on their ability to perform in a particular role, employers should proactively make adjustments.”
Graham said: “I am delighted with the settlement, which could not have been achieved without Prospect’s help.”