21st January, 2021
Case Study: Mr A Hurle v London Fire Commissioner 
An Employment Tribunal has ruled in favour of a fire station manager who had been dismissed following a disciplinary procedure linked to repeated absences from work.
The Tribunal found that the London Fire Commissioner had discriminated against Mr Hurle by commencing disciplinary proceedings and taking the decision to dismiss him for reasons which were linked to his disability.
Mr Hurle was employed by the London Fire Commissioner as a Fire Station Manager (Development) until his dismissal on 24 October 2019. Mr Hurle had been promoted to the role on 15 November 2018 and had taken up the posting from 2 January 2019. Shortly after being offered the promotion, he was notified that he would be based in the Chingford Fire Station, located in North East London. He notified his line manager that although he would accept the role, he would prefer if possible, to be based in the South West of London, as he would be commuting from his home in Hampshire. In December 2018, his employer confirmed that the Chingford role was the only available vacancy.
Mr Hurle’s commute typically took between 2.5 to 3 hours, and his rota included a combination of on-call and managerial shifts over a 4-weekly cycle.
Shortly after taking up his new role based in Chingford, Mr Hurle informed his line manager that his long commute was having a negative impact on his family. His daughter was struggling to adapt to his early starts necessitated by the distance from Chingford Fire Station. In February, Mr Hurle submitted an urgent request to transfer to another fire station, noting that the commute was ‘having an impact on my own wellbeing as it is causing me distress.’ Later in the same month, Mr Hurle was informed that there were no vacancies in the five stations located in South West London.
Around this time, Mr Hurle was diagnosed with depression and was prescribed an anti-depressant. He informed his line manager of the diagnosis immediately, who asked Mr Hurle to complete a stress risk assessment. Mr Hurle identified that he was experiencing high levels of stress, compounded by lack of sleep and worries relating to his family. Shortly after being diagnosed with depression, Mr Hurle had a period of sick leave due to side-effects caused by his medication.
When he returned to work in early March, Mr Hurle requested that changes be made to his working hours in the short term, and noted that in the longer term he would require a transfer to a station in South West London in order to reduce the length of his commute. A referral was made to Occupational Health, and a medical report was produced which confirmed that Mr Hurle was unfit for work at that time. The report noted that ‘his commute is severely affecting his mental health.’
On 8 March, Mr Hurle was signed off work for two months due to low mood and depression. During his absence, the employer began investigating his suitability for the role. A letter was sent to Mr Hurle to allege that he had applied for the promotion under false pretences, which caused him a great deal of distress. He reported that he had considered taking his own life due to the additional stress and worry he experienced.
During his absence, the employer began discussing what they viewed as Mr Hurle’s unacceptable level of sickness. The Fire Brigade’s policy on managing attendance offered guidance on managing long-term sickness absence. The policy enabled the Brigade to bring forward disciplinary proceedings, including dismissal. Email correspondence from the Assistant Commissioner confirmed that they intended to use the policy, and to apply it ‘robustly’.
In early May Mr Hurle returned to work and again noted his intent to pursue a transfer to another station. Following a mental health crisis triggered by his return to work, Mr Hurle was signed off for a further month.
During his absence, a role became available at another Station, but Mr Hurle was informed that his transfer could not be sanctioned as he was currently on sick leave.
On 12 June, Mr Hurle requested disability support from the LFC’s Inclusion Team, citing his depression as a protected characteristic under the Equality Act. Despite this request and regular Occupational Health reviews, the employer did not consider making any adjustments for Mr Hurle. In fact, his line manager confirmed that they had not been able to consider reasonable adjustments because they had not been provided with any evidence to support that he was disabled. Mr Hurle was invited to a disciplinary hearing to discuss his high levels of absence.
Mr Hurle commenced proceedings in the Employment Tribunal, submitting his claim on 6 September 2019. The Stage 3 Disciplinary Hearing took place on 27 September. Mr Hurle was dismissed with effect from 24 October, with the primary reason for dismissal appearing to be his regular absence due to his medical condition.
The Tribunal concluded that the London Fire Commissioner had discriminated against Mr Hurle by conducting disciplinary proceedings, and ultimately dismissed him, for reasons directly linked to his disability. In addition, the LFC had failed to make a reasonable adjustment to their policy which would enable Mr Hurle to transfer to the position available at Feltham. The Tribunal commented that ‘Facilitating the transfer would have given the Claimant a real prospect of returning to work.’
Employers have a legal duty to consider whether reasonable adjustments should be made to enable employees with a disability to effectively carry out their role. Those adjustments might relate to the workplace itself, for example, by providing suitable equipment for the employee, or the employers’ policies and procedures, for example, by adjusting working hours. The duty arises where the employer knows, or ought to know, that a job applicant or an employee has a disability, as defined by the Equality Act. Whether an adjustment is ‘reasonable’ is dependent upon the situation at hand. Employers should carefully consider the merits of any adjustment which may have been requested by the employee or recommended to the employer. Where an adjustment is not made, the reason for this decision will need to be carefully recorded by the employer.
Employers who are unsure of their responsibilities towards their employees, including those who may have a disability, should seek specialist legal advice. If you or your HR department require guidance on supporting the needs of employees with disabilities, then contact Tori Shepherd, Solicitor in the Employment Team at Aaron & Partners LLP who would be happy to assist.
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