Security guard who suddenly lost his eyesight was unfairly dismissed by firm that made ‘little effort’ to help him stay, tribunal rules

Judge says employer ‘ignored’ potential vacancy and left claimant ‘in limbo’ by failing to consider reasonable adjustments

A tribunal has ruled that a security guard who was made redundant a few months after the sudden loss of his eyesight was unfairly dismissed and discriminated against because of his disability.

The Havant tribunal said that his employer, Mitie, failed to fully investigate potential roles or to look into how they could be reasonably adjusted to enable Christopher Lee to stay at the company.

Two occupational health reports concluded that he was not fit to return to work and no reasonable adjustments could be made. But the tribunal said no one had visited Lee or his workplace to assess what he was capable of doing.

The judgment said the claimant was “left where he was” by Mitie, which “ignored” one potential vacancy and made “little effort” to help him to stay on.

“There is no evidence before us that the respondent had any form of coordinated policy or practices for managing or assisting an employee who became disabled during the course of his employment,” the judgment concluded.

Lee was a security guard for Mitie at Kinetec Portsdown Technology Park from January 2018 until September 2021.

The tribunal heard he began to have problems with his left eye in October 2020. By 4 January 2021, when he called in sick, he had lost all vision in his left eye and 75 per cent in his right eye.

Lee was diagnosed with non-anterior arteritic ischemic neuropathy – a condition that he was told was permanent.

On 20 January, he was signed off until the end of March. On 21 January, Lee was registered as disabled with Portsmouth City Council.

On 15 March, he wrote to Mr B Houseman at Mitie to ask whether his disability documents had been passed to occupational health, adding: “I am still left in a state of limbo.”

He said he would “love to come back to work” and enquired about reasonable adjustments being made to enable it.

The judgment noted: “Until the claimant chased the respondent in March 2021 no steps had been taken to refer the claimant to occupational health or to otherwise find out what the claimant was still capable of doing and what he was not able to do.”

On 22 March, Lee met with occupational health (OH) adviser Joan Rogers.

On 24 April he contacted Houseman because he had not received sick pay that month. Two days later, he made contact again and said he had not heard from OH, adding: “It just seems to be out of sight, out of mind, not working, not getting paid.”

On 1 July Lee spoke over the phone with Andrea Voisian, an occupational physician.

The tribunal said Lee received a copy of the OH assessment report from Rogers on 2 July, and went on: “The report stated that there were no reasonable adjustments that could be made and that the claimant was not fit to return to work.”

In evidence, the claimant said he was “unclear how she could have made such an assessment or come to her conclusions” when she had not visited him or his workplace.

The tribunal panel agreed with Lee, saying: “No one from the respondents had discussed with the claimant what he was capable of doing or indeed considered whether there were things that he could not do but might be able to do with reasonable adjustments or the provision of auxiliary aids, for example.”

The report added that Mitie is a “national employer” and said: “They must have had to deal with making reasonable adjustments for disabled employees on numerous occasions.”

On 2 August, Lee raised a grievance against Mitie, for reasons including that he had no welfare checks from the company, had to “initiate all contact with management” and had never been contacted by HR to discuss possible redeployment or adjustments.

At the same time, Voisian wrote the report from her phone call with Lee on 1 July. She said she had received a letter from Lee’s ophthalmology consultant and also referred to his use of a hearing aid, diabetes and high blood pressure.

The report said Lee was “not fit to return to work [owing] to loss of sight and was unlikely to return for the foreseeable future”, adding: “There are no adjustments that I can suggest facilitating this.”

The tribunal report pointed out that Voisian “did not at any stage carry out any sort of assessment or review what the claimant could do”.

It said: “We would expect an OH practitioner to be fully aware of a range of assistive technologies including voice recognition technology and read back facilities which may have assisted the claimant to carry out some form of work using computer screens.”

Discussions took place between Lee and his managers in an attempt to find alternative employment within Mitie, with Southampton port a suggestion.

Despite the claimant saying that his disability would make travel to Southampton difficult, it was suggested he visit the port and “trial travelling to and from” it.

The judgment said: “The expectation appeared to be that the claimant would need to demonstrate that he could do the job in spite of his disability rather than considering whether any role could be adjusted for the claimant as a disabled person.”

At this point, it emerged that Lee’s manager, Mr Carr, was considering retirement and had spoken to the claimant about taking over his role.

But the tribunal found that no one from Mitie’s senior management spoke to Carr about his intentions – despite it being an “obvious solution” to the claimant’s situation if true.

Instead, they argued that the role was not suitable for Lee because it involved standing in for security guards on occasion.

On 27 August, the grievance hearing was held, followed immediately by a capability meeting.

The grievance was rejected and on 14 September the outcome of the capability meeting was revealed when Lee received a letter dismissing him from his job. It said Mitie could offer “no further support to the claimant in returning to work”.

The tribunal noted being “struck by how little effort the respondent managers had made to retain the services of Mr Lee”.

It added: “The fact that, since his dismissal by the respondent, he has received significant assistance from various charities that have enabled him to develop numerous skills and to live a full life, including becoming a participant in a popular national cookery competition, is not only testament to his own determination but is also an example of what is possible with help from the right quarter.”

It said it would have been possible to adjust any of the potentially vacant roles, including Lee’s existing job, and went on: “We are concerned that in reality what happened is that the managers at Mitie only took steps to find a job that a blind employee could do rather than trying to find a job that could be adjusted so that Mr Lee could do the role.”

In terms of the potential of Lee taking over from Carr if he retired – as he did later the same year – the tribunal concluded: “Instead of investigating the possibility, they ignored it.”

It went on to say: “We all agree that in the early stages of the claimant’s disability the respondent seemed content to simply leave him where he was without taking any steps at all to manage his absence.”

A remedy hearing will be scheduled for a future date.

The tribunal said: “We accept that the respondent genuinely believed the claimant was no longer capable of performing his duties.

“But from the facts we have found it is right that we all consider that the respondents were not reasonable in their belief that he was not capable of performing his duties and the main reason for that is that they had not carried out sufficient enquiries.

“It is vital that the respondent makes proper enquiries about what assistance might be available to the disabled claimant to enable them to come back to work.

“In this case that would have included some contact with one of the many organisations providing support to the blind and partially sighted as well as some form of workplace assessment to consider what the claimant could do rather than focusing on what he could not do.”

Yvonne Gallagher, employment partner at Harbottle & Lewis, said the tribunal accepted the claimant’s evidence that no one from the company had discussed with Lee what he was capable of doing, including whether “provision of auxiliary aids might in fact make it possible to carry out some things he could not do without such aids”.

She added: “The tribunal noted that the company has ‘done nothing except refer the matter to occupational health’ with the most basic of referrals.

“The obligation under the Equality Act requires more than this from employers, especially large employers such as Mitie.

“The tribunal also notes that in the context of dismissal the duty to make adjustments can extend to considering potential and future vacancies even to the extent of creating new roles.”

Gallagher continued: “It is risky for an employer to rely on assertions made by an occupational health adviser without taking steps to satisfy itself that the adviser has taken sufficient steps to familiarise themselves with the reality of the employee’s role and capabilities in order to reach such a conclusion.

“The tribunal notes that ‘no one had considered what he could do as opposed to what he could not do’ in considering whether alternative roles or adjustments were available. That is a useful phrase for employers to keep in mind when considering options for employees who are dealing with a disability.”

Source – people management