Disabled fire station manager dismissed for ‘unacceptable’ attendance was discriminated against, tribunal rules

Judge finds fire brigade failed to make reasonable adjustments for worker’s mental health conditions

A fire station manager dismissed because of his “unacceptable” record of attendance, which was linked to his disability, was discriminated against, a tribunal has ruled.

The East London tribunal ruled Mr A Hurle, who worked as a station manager for the London Fire Brigade (LFB) from 2 January 2019 until his dismissal on 24 October 2019, was discriminated against after he was subjected to a disciplinary procedure and ultimately dismissed for reasons linked to his disability.

The tribunal also ruled the London Fire Commissioner failed to make reasonable adjustments for Hurle. 

The tribunal heard Hurle was employed as a development fire station manager by the LFB, meaning he was undergoing a training programme as part of his role, from 2 January 2019. Hurle was initially posted at Chingford Fire Station in north-east London, despite living in Hampshire, more than two hours away.

Before his official appointment, Hurle emailed his line manager, borough commander (BC) Prasad, stating that had discussed with recruitment his hope for a vacancy in the South West or Hampshire area to make his commute to work “as least impactful as possible”. He said he was happy to take the post at Chingford, but stated “the travel time is something that is not sustainable in the long term”. 

On 13 January, Hurle emailed Prasad to inform him that, because of his child’s distressing response to him leaving home early for work, he had decided to apply to return to Hampshire and sought Prasad’s support for a reference.

On 14 February, Hurle wrote to Mr Wainwright in the Establishment and Performance Team (EPT), who was responsible for administering transfers, making an “urgent” transfer request. He detailed the same personal circumstances that he had described to Prasad and went on to state they were “having an impact on my own wellbeing as it is causing me distress”. 

Wainwright told Hurle on 20 February that there were no current vacancies and transfers had to be sanctioned by Mr A Perez, deputy assistant commissioner (DAC) of the north east area. 

On 19 February, Hurle’s GP diagnosed him with depression and prescribed him with medication. Hurle told Prasad about this on 20 February. Prasad immediately asked Hurle to carry out a stress risk assessment. 

The tribunal heard that Hurle identified he was under high stress in relation to inadequate sleep because he was worrying about his situation, and he also identified areas of “intolerable stress” including his close relationships. 

On 25 February, Hurle was signed off sick until 4 March with side effects of his depression medication. 

Upon his return to work, Hurle requested adjustments to be made, including a phased return with one hour less at the beginning and end of the day. In the long term, he requested a transfer to a station in the south west of London which would save him commuting time.

On 8 March, Hurle’s GP again signed him off work for two months with “low mood/depression”. 

Two days later, on 10 May, assistant commissioner Roe wrote to Mr Amis, LFB’s head of wellbeing, and Ms C Gibbs, head of HR advice and employee relations, asking that “we consider how as an HR function, we commence management action to address” Hurle’s “level of absence almost from commencing employment”. 

Amis replied to Roe the same day referring to the “managing attendance policy which provided clear guidance on how long-term sick cases should be managed”. He went on to suggest that – because of Hurle’s circumstances and his recent transfer from another brigade – the case could be best managed via a policy which stated: “Where there are concerns during initial training over conduct, attendance and/or performance then action under this procedure, including dismissal, may be brought forward…”

Hurle returned to work briefly on 17 May, but he emailed Prasad on 19 May informing him that he had been signed off for a further month because of his mental health. 

The tribunal heard that at some point before 7 May, Hurle heard from colleagues that a station manager vacancy might arise at Feltham in south-west London. He told Prasad about this on the phone on 7 May, and Prasad said he would look into it. 

On 12 June, Hurle emailed Prasad to see whether a move to Feltham was possible. But on 13 June, Prasad informed Hurle that no transfer could be offered while he was off sick. 

On 6 August, Hurle was invited to a disciplinary hearing because of his "unacceptable record of attendance" as he had "104 working days lost out of a possible 140". 

Hurle presented claims of disability discrimination to the employment tribunal on 6 September, and the disciplinary hearing took place later than month on 27 September. Hurle was dismissed by letter dated 19 October with effect from 24 October.

The tribunal unanimously ruled that the London Fire Commissioner discriminated against Hurle by failing to make reasonable adjustments to the policy and practice to allow a station manager on development to be put forward for transfer, which would have allowed Hurle to be put forward for the vacant position at Feltham.

The tribunal also found that the London Fire Commissioner had discriminated against Hurle by subjecting him to disciplinary procedures and dismissing him. 

Judge Moor said it was “completely inappropriate” to describe Hurle’s absence from work as “an offence, [...] unless the charge was of malingering”. The tribunal found that the wording showed Roe thought that Hurle had gone on sick leave in order to get a transfer. Moor added that, while Hurle had always wanted a transfer, “his need for one grew [...] after the breakdown in his mental health”.

“That is not manipulating the system but responding to the facts of what had happened to his mental health,” Moor said. “While such a suggestion was never made clearly in the respondent’s case, if the suggestion lingers that the claimant has been using his health to get what he wanted, we would reject that suggestion.”

Other claims of direct discrimination were dismissed.

Kate Palmer, HR director at Peninsula, said this case is a reminder that employers have a legal duty to make reasonable adjustments for disabled staff in order to assist them in their role. She explained these situations should always be handled carefully or an employer runs the risk of a discrimination claim.

"While employers may be able to argue that an adjustment simply wasn’t reasonable for the company, this can be difficult to prove, and they will need to clearly show that they fully considered it and, crucially, why they reached the conclusion they did," Palmer said. 

"It can be difficult to reject a call to move them to another work site closer to home, especially when the company is in a position to do this."

An LFB spokesperson said the organisation acknowledged the outcome of the tribunal and accepted that this has been a challenging time for all those involved. 

They added: "The circumstances of this case were multi-faceted, and it was recognised by the tribunal that this was a difficult case. We are committed to supporting the mental health and wellbeing of our staff and take our obligations under the Equality Act very seriously.”

Hurle has been contacted for comment.