Mr C Elliott v Salisbury NHS Foundation Trust — 2023

The tribunal accepted that Mr Elliott was disabled within the meaning of the Equality Act 2010 and that his disability gave rise to sickness absence and inappropriate conduct at work. It found that the reason for dismissal on 9 December 2020 was capability: the decision-maker was not confident that his attendance would improve in the foreseeable future, and the impact on the Trust's service did not make continued employment sustainable. The tribunal relied on the history of long-term absences, the Attendance Management Policy, the evidence from Occupational Health, and Dr El-Khayat's report, including the discussion of ill-health retirement and relapse prevention.

Applying the band of reasonable responses under s.98(4) ERA 1996, the tribunal held that the Respondent acted reasonably in all the circumstances. It found that the Respondent genuinely believed Mr Elliott could not ensure increased attendance, had carried out a reasonable investigation and had the up-to-date medical material, had adequately consulted him over a long period, and was not required to wait longer before dismissing. The tribunal accepted that a number of adjustments had already been made, including phased returns, rota and shift changes, light duties, reduced hours, and redeployment into a car park enforcement role created to suit his needs.

The tribunal also rejected the procedural unfairness challenge. It held that the points relied on by the Claimant, including the medical evidence saying he was fit to return to work, the medication changes, and the way he presented at the review meeting, did not make the dismissal procedurally unfair. It found that the Respondent had not rejected the medical evidence irrationally, and that the Claimant's presentation at the hearing did not undermine the wider evidence about attendance, service impact, and the risk of future relapse. The appeal was also dismissed, and the tribunal found that the appeal outcome simply upheld the original capability dismissal.

On the discrimination arising from disability claim under s.15 Equality Act 2010, the tribunal accepted that the dismissal and the rejection of the appeal were unfavourable treatment, and that the treatment was because of sickness absence arising from disability. It accepted the Respondent's legitimate aims of maintaining a smooth and efficient car park service, maintaining attendance, avoiding increased cost and reduced revenue, and protecting health and safety. Balancing those aims against the impact on Mr Elliott, it held that dismissal was a proportionate means of achieving those aims, particularly given the long absence history, the service impact, the adjustments already tried, and the evidence that future absences could not be ruled out. Both claims were therefore dismissed, and because this was a liability-only judgment no remedy was awarded.