LONDON UNDERGROUND DISCRIMINATION VICTORY

RMT helpline 0800 376 3706 :: january 2022 :: RMTnews 18 RMT helpline 0800 376 3706 :: january 2022 :: RMTnews 18 LEGAL An RMT member has won a successful claim of disability discrimination against London Underground Limited at a hearing in the Watford Employment Tribunal. The Tribunal found that LUL discriminated against the member, represented by RMT’s legal department, when it terminated a phased return to work and subjected the member to medical redeployment. The member was employed by LUL as a Train Maintainer and involved in accident at work in May 2016. He returned to work on light duties nine months after the accident and initially undertook office-based work but he was keen to get back to his Train Maintainer duties. In early 2019, he raised the possibility of returning to Train Maintainer duties with his then-line manager but he was referred to Occupational Health instead. The Tribunal found that it was “crystal clear” from the very outset that his limitations, resulting from his accident, could be considered as permanent. Occupational Health placed some restrictions on the work that he could do and LUL were advised to carry out a risk assessment of the specific tasks he was required to perform. LUL carried out a risk assessment with the member and an RMT health and safety representative. The Tribunal found that it was always contemplated that the risk assessment would be “reviewed and expanded as appropriate”. Following the initial assessment, the member and LUL agreed that he would undertake a 20-week phased return to Train Maintainer duties. He began his phased return to Train Maintainer duties in August 2019. The Tribunal found that it was “envisaged that the claimant’s performance would be reviewed regularly and that he would be risk assessed as to whether he could safely increase the amount of tasks he could undertake”. However, within weeks of starting his phased return, LUL referred him back to Occupation Health. The Tribunal found it “curious” that a referral was made at this time. Shortly afterwards, the member was informed that the phased return was no longer an option, that it was LUL’s view that he was not fit for perform his full duties and that LUL had therefore decided to subject him to medical redeployment. The member’s team leader had not even been consulted about his performance prior to the decision being made. LUL’s evidence to the Tribunal was the latest Occupational Health report had been a “game changer” and lead them to conclude that there was no point in the phased return to work continuing and that he should be medically redeployed. However, the Tribunal found that there was “no change at all” from the previous reports. The Tribunal went on to say: “It is clear to us that the claimant was physically able to undertake more work than was contained within the original risk assessment. We find that the reviews that were intended to take place were not happening. We would have expected further risk assessments to be undertaken to see if the claimant was capable of safely undertaking more and more of his full-time duties. This did not happen.” Despite representations from trade union representatives, LUL pressed ahead with the decision to subject him to medical redeployment. At a further meeting, he provided supportive medical evidence to LUL. Despite this, he was told that he had until 4pm that day to indicate whether he accepted redeployment. He was also told that if he declined or did not respond then his employment would be medically terminated a few days later. The member raised a grievance about LUL’s decision to subject him to medical redeployment and he appealed against an unsuitable job offer that had been made to him. The redeployment process was therefore placed on hold. He completed his phased return to Train Maintainer duties and carried on in the role; he even worked overtime - yet LUL continued to argue that he was unfit to perform the role. RMT’s legal department were instructed to act in his claim of disability discrimination at the Employment Tribunal. At a four-day hearing in October 2021, the Tribunal found that terminating the phased return to work half-way through was a failure to make reasonable adjustments and that the member should have been allowed to complete his full agreed return to work programme and a final risk assessment undertaken before making any decision on whether he should be redeployed. The Tribunal also found that LUL had treated him unfavourably because of something which arose in consequence of his disability. The case has been listed for a further hearing in order for the Tribunal to determine the level of compensation to be awarded to him. LONDON UNDERGROUND DISCRIMINATION VICTORY Union wins disability discrimination case against London Underground for terminating a phased return to work