Employee injured at work wins his claim for disability discrimination (Mr C Pinnegar v London Underground Ltd – 3302555/2020)

In the case of Mr C Pinnegar v London Underground Ltd 3302555/2020, the employee was successful in his claim for disability discrimination.

The factual background of Mr C Pinnegar v London Underground Ltd

Mr Pinnegar commenced employment as an Assistant Technician from 19 August 2007 for London Underground Ltd. He became a Train Maintainer in October 2014 and was then subject to a “TUPE” transfer in October 2018. Mr Pinnegar alleged during the course of his employment:

• That half way through his phased return to work on 18 November 2019 he had been pressurized into accepting redeployment and only reluctantly agreed;
• That abandoning the phased return to work and moving him on to redeployment resulted in a failure to make reasonable adjustments and unfavourable treatment;
• That on 3 December 2019,  Mr David Kelly, Deport Manager,  threatened him with dismissal if he did not accept medical redeployment.

On 10 May 2016, Mr Pinnegar sustained an injury to his right arm and shoulder while at work and was left with lasting impairment in his movement, strength and endurance. Following his accident, Mr Pinnegar was off work for nine months and in February 2017 he returned to work on light duty. He was placed on office work and his days and hours worked slowly increased over time. By October 2018 he had returned to full-time hours and had completed the majority of his treatments for his injury.

On 10 January 2019, a physiotherapy report was sent to Mr Riley stating that “there was minimal change to a movement nor arm function, however, Carl reports to be managing his symptoms better with his current medication and feels that he is doing more at work. Carl’s limitations with respect to arm movement, strength and endurance have not changed significantly, therefore overhead work, heavy work, work requiring a firm grip, and repetitive/high-speed tasks with the right arm are not appropriate for him. From a musculoskeletal perspective, based on progress seen so far, there is unlikely to be any significant change to Carl’s arm function, and therefore his ability to carry out duties in the short to medium term.”

During the first half of 2019, Mr Pinnegar attended a number of risk assessment review meetings to discuss work duties which he would be able to perform, given his limitations. During August 2019 Mr Pinnegar undertook new starter training and on 21 August 2019, he began a phased return to work. This phased return took place over 20 weeks during which Mr Pinnegar’s hours and days working in the workshop were gradually increased with the expectation that by December 2019 he would be working 4 days in the workshop.

However, on 3 September 2019, Mr Kelly, the Depot Manager, made another referral to Occupational Health and alleged that the report he received caused him to decide that there was no point to Mr Pinnegar undergoing a phased return to work and instead he should be redeployed.

On 18 November a case conference took place at which Mr Pinnegar highlighted the fact that he felt he had not been given a chance to get back to full duties after recovery. He emphasised that there had been no reviews and that Mr Kelly had not spoken to the claimant’s team leader about his performance. The meeting concluded with Mr Pinnegar being offered redeployment and being given 10 days to consider that offer. On 21 November 2019, the Claimant was against invited to a medical case conference that would be held on 3 December 2019. At this meeting, Mr Pinnegar provided medical evidence showing he was fit to work but was told he had until 4 pm to accept or deny redeployment otherwise he would be medically terminated. The Claimant then reluctantly agreed to accept the redeployment.

On 23 December 2019, Mr Pinnegar was offered the role of Customer Service Assistant 2 (CSA2) which he turned down believing he did not have the relevant Safety-Critical Licence for the role. Although this assumption was incorrect Mr Pinnergar essentially did not want to be a Customer Service Assistant, he wanted to be a Train Maintainer. On 1 January 2020, Mr Pinnegar raised a grievance about being placed on redeployment and appealed against the job offer and following this he presented his claim for disability discrimination on 17 February 2020 and failure to make reasonable adjustments. At the time of the claim, Mr Pinnegar was still employed by the Respondent but he was subsequently dismissed on 21 August 2021.

The decision of the Employment Tribunal

Discrimination arising from disability

The Employment Tribunal had to consider (under section 15 Equality Act 2010):

• Whether Mr Pinnegar had been treated unfavourably;
• Whether any unfavourable treatment had arisen in consequence of Mr Pinnegar’s disability; and
• Whether any unfavourable treatment was a proportionate means of achieving a legitimate aim

The Employment Tribunal held that the following treatment amounted to unfavourable treatment:

• London Underground commenced its redeployment process when Mr Pinnegar was only part-way through his 20-week phased return to work and a full risk assessment had not yet been completed;
• Mr Kelly threatened Mr Pinnegar on 3 December 2019 with dismissal if he did not accept medical redeployment; and
• London Underground offered Mr Pinnegar the role of Customer Service Assistant 2 on 23 December 2019 (a role which did not require a Critical Safety Licence)

The Claimant considered that the unfavourable treatment arose in consequence of Mr Pinnegar’s disability (as his medical limitations were effectively permanent and these limitations meant that he could not undertake 100% of his full work duties as a Train Maintainer), and that the unfavourable treatment was not proportionate (although it did find that there was a legitimate aim in London Underground pursuing the course of conduct that it had).

The Claimant therefore succeeded in his claim for discrimination arising from disability.

Failure to make reasonable adjustments

The Claimant’s claim for failure to make reasonable adjustments was not successful.

Find out more about disability discrimination

Our lawyers view on Mr C Pinnegar v London Underground Ltd

Steve Norton an advanced paralegal at Redman’s commented on this case, “In this case the employer was not willing to accommodate the needs of the employee and his desire to continue doing the job he enjoyed most. The Tribunal suggested that an observed risk assessment at the end of the phased return to work would have likely enabled them to properly assess his ability to carry out his duties in the role of Train Maintainer with the necessary adjustments to accommodate his impairments and the failure to carry out this assessment was the reason this disability discrimination claim succeeded.”

The decision of the Employment Tribunal in Mr C Pinnegar v London Underground Ltd 3302555/2020 can be found here