Mrs T Clifford v Skills to Group Limited — 2022

Mrs Clifford had a physical impairment arising from post-operative complications of a right knee replacement, which the respondent accepted was a disability. She had been absent from work from 25 February 2019 and, after a period of correspondence about her attempted return in 2020, the respondent obtained a health and safety report, then an occupational health report, and convened an assessment group to consider possible adjustments. The tribunal found the respondent knew of her disability and of the effects on mobility and sickness absence throughout.

The reasonable adjustments complaint concerned parking and the availability of a lighter chair. The tribunal held the complaint was out of time because the refusal to make the adjustments was made clear in the letter of 18 September 2020 and the claim was not presented until 8 April 2021, after the ACAS period had been taken into account. It refused to extend time on the just and equitable basis, noting that Mrs Clifford had already been taking advice about her rights and had the resources to investigate limitation. If wrong on limitation, the tribunal said the claim would still fail: parking could not be guaranteed at the relevant salons and providing a portable chair would have increased the weight she needed to carry, whereas a tablet was offered as a lighter alternative to a laptop.

The section 15 claim succeeded on the first stage only, in the sense that the tribunal accepted the dismissal was unfavourable treatment because of something arising in consequence of disability. It accepted health and safety as a legitimate aim, and also took into account concerns about liability insurance and cost. Applying objective justification, the tribunal found the respondent had acted rationally and responsibly through the occupational health process and the assessment group, and that dismissal was proportionate because there was no credible timescale for surgical intervention, the claimant had been absent for about 22 months, and the respondent had explored alternatives including a temporary modified role based at Newton Abbot. The tribunal therefore dismissed the disability-related discrimination claim.

The unfair dismissal claim was dismissed because the tribunal accepted capability as the principal reason for dismissal and held that the respondent could not reasonably be expected to wait longer in the absence of a credible treatment timescale. It found the investigation through the health and safety report, occupational health report and assessment group was reasonable, and that the procedure remained within the band of reasonable responses despite the omission of the assessment group minutes from the material initially provided to Mrs Clifford. The holiday pay claim failed because the contract expressly allowed the employer to require unused holiday to be taken during notice, and the dismissal letter exercised that right by requiring three days' leave to be taken per week of notice.