Mr D Whelan v South Gloucestershire Council — 2020

Mr D Whelan was employed by South Gloucestershire Council as a Young Persons Support Engagement Worker for about nine years before his dismissal with immediate effect on 16 October 2018. The tribunal recorded that he had been off sick for about eight months because of depression and PTSD, and that the dismissal was on grounds of capability, after he took ill-health retirement. It found that the respondent had made a series of adjustments and held repeated ill-health meetings, including occupational health referrals and discussions about redeployment.

On protected disclosure, the tribunal accepted that the claimant's complaint about an apparent unauthorised discussion of his medical position could potentially be protected because it concerned confidentiality in a medical context. It nevertheless rejected the claim because it found no detriment: the 22 August and 2 October occupational health reports did not materially differ, and Dr Cordell was accepted as saying that the complaint did not influence his opinion or cause the claimant any professional or business consequences.

On reasonable adjustments, the tribunal reduced the pleaded PCPs to three in substance: the requirement to attend work and carry out the work, the rota-based return-home interview work, and the notice-based medical redeployment process. It accepted that the first two PCPs put the claimant at a substantial disadvantage, but held that the proposed adjustments were not reasonable in the circumstances. In particular, it found that a stand-alone RHI role, a stand-alone family training role, part-time work, or some adjusted role within the team would not have been practicable or likely to get the claimant back to work, and it rejected the suggestion that the employer had failed to give proper consideration to adjustments.

The tribunal also dismissed the discrimination arising from disability claim. It accepted that dismissal was unfavourable treatment, but held that it was a proportionate means of achieving the legitimate aim of effective and efficient management of the service. The tribunal said there was no reasonable adjustment that would have enabled a return to the substantive role, and it noted the claimant's long absence, the medical evidence, and his decision not to pursue redeployment. The unfair dismissal claim was also dismissed because, despite some procedural criticisms such as lack of formal notes and the mis-titling of the final meeting, the tribunal found dismissal for capability was fair and would in any event have been inevitable.