A disabled kitchen manager was discriminated against when his employer unfairly dismissed him for failing a food safety audit, a tribunal has found.
A London employment tribunal (ET) ruled that restaurant operator Whitbread Group unfairly dismissed Mr J L Hermosa Mateos after his disability affected his ability to carry out food safety checks.
The tribunal concluded that Whitbread knew Hermosa Mateos’s condition had a “substantial adverse and long-term effect on normal day-to-day activities”, but failed to consider this or make a reasonable adjustment by reducing his workload.
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Mateos managed The Albert in Colchester, part of the Beefeater chain owned by Whitbread, and held the role for three years before his dismissal.
The ET heard that The Albert was considered one of the chain’s worst performing restaurants when Hermosa Mateos was appointed kitchen manager, but had been “substantially transformed” under his management.
In November 2017, Hermosa Mateos was admitted to hospital with a ruptured bowel and underwent major surgery. As a result he was on sick leave until the beginning of May 2018.
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Hermosa Mateos underwent an occupational health (OH) assessment on 5 April which noted he was getting back to normal daily activities, but said it was prudent for Whitbread to regard Hermosa Mateos as covered by disability legislation under the Equality Act.
On 26 April, Mateos attended a welfare meeting with his line manager, Mr Kevin Davies. They discussed Hermosa Mateos’s phased return to work, starting with him working 24 hours per week before subsequently increasing this to 48 per week to reflect his full contracted hours.
However, the tribunal heard there was no review of Hermosa Mateos’s ability to cope once back to working 48 hours a week. It also heard that, due to the demands of a busy kitchen, he often worked more than the required hours.
The tribunal heard that as Hermosa Mateos’s hours increased, his pain worsened and so he increased his medication.
The tribunal accepted Hermosa Mateos’s evidence that this also intensified the medication’s side effects, meaning from May 2018 he experienced poor concentration and poor memory, as well as feeling weak and experiencing depression and anxiety.
These side effects impacted Hermosa Mateos’s ability to carry out the administrative aspects of his role, including remembering food safety checks and their required frequency.
A food safety audit was carried out at The Albert on 28 July by an external organisation, and Whitbread failed a critical part involving the handling of an egg product. Hermosa Mateos was not on duty when the audit took place and the head chef – who had taken over some of Hermosa Mateos’s responsibilities in his absence – was suspended as a result.
This suspension reduced core staffing levels in the kitchen, and the existing staff were expected to cover the head chef’s duties. The tribunal heard Hermosa Mateos worked around 68 hours during the first week of August 2018 to help cover the head chef’s absence.
In total, the audits identified 20 issues with food safety at The Albert during the period from 31 July to 7 August.
These issues were raised with Hermosa Mateos on 7 August at a meeting with Ross Nash, a general manager at one of Whitbread’s other restaurants. Hermosa Mateos accepted that the food safety issues identified were present and that they posed a risk to customers. But he added that some of the issues should have been picked up by other members of staff, and the pain he was experiencing affected his concentration.
At the end of the meeting Hermosa Mateos was suspended, which lasted until the end of his employment.
A further investigation was carried out, and Nash prepared a report that identified multiple food safety standards failures. He recommended the matter be referred for a disciplinary hearing because of the seriousness of the offences and the risk to both guests and the company.
Hermosa Mateos attended disciplinary hearings on 21 and 23 September and repeated that he was taking “a lot of medication” which made him tired, stressed and caused difficulties in focusing.
At the conclusion of the meeting on 23 September, Hermosa Mateos was issued with a dismissal letter.
He appealed the dismissal but was unsuccessful. He then brought claims of unfair dismissal, failure to make reasonable adjustments and unfavourable treatment in relation to his disability.
The ET found Hermosa Mateos had been unfairly dismissed, was unfavourably treated because of his disability, and that Whitbread had failed to make reasonable adjustments.
However, the ET reduced Hermosa Mateos’s award for unfair dismissal by 60 per cent to reflect the fact that if he had not been disabled, there was a chance the dismissal would have been fair given the food safety failures were “sufficiently serious for a reasonable employer to regard this as a sufficient basis to dismiss for gross misconduct”.
The tribunal awarded Hermosa Mateos £24,707 for injury to feelings, compensation and in interest.
Paul Holcroft, associate director at Croner, said the case was a reminder of the impact a medical condition or disability can have on an employee.
“When deciding if a decision to dismiss an employee was fair, tribunals will assess what a reasonable employer would do in the situation presented,” Holcroft said.
“As seen here, the fact that the employee’s medical issues and their effect on him were not taken into account by the company meant that the decision to dismiss him was not reasonable – despite the problems in his performance amounting to gross misconduct.”
Whitbread has been contacted for a comment. Hermosa Mateos could not be reached for comment.