In person For the v Respondent — 2023

The Claimant worked for the Respondent from 13 May 2013 as a Band 2 Health Care Assistant in the Emergency Department. The tribunal accepted that he was disabled by reason of depression and anxiety at the relevant times. It found that he initially performed well, but from February 2016 there were issues involving conduct, communication and work-related stress, followed by occupational health involvement and a facilitated meeting with Mr Evans in March 2016.

The Claimant then had further absences in 2016 and was off work from 20 October 2016 until dismissal. A union grievance alleging bullying and harassment, sickness-management failures and concerns about management was investigated, later heard on written submissions, and then appealed. The tribunal found that the grievance process was not shown to breach the ACAS Code or to involve unreasonable delay, because the Claimant's ill-health, occupational health advice and the parties' agreed approach affected the timetable. It also noted that some grievance points were upheld in part, including criticism of the open-office discussion about the cannula incident and missed opportunities for an earlier return-to-work discussion, but those findings did not change the liability outcome.

On 21 December 2017 the Claimant was dismissed for capability/ill health. The tribunal held that dismissal was the Respondent's reason, that capability was a potentially fair reason, and that the decision was within the range of reasonable responses under s.98(4) ERA 1996. It accepted the Respondent's aims of managing absence consistently, maintaining staffing levels, keeping a stable workforce and reducing sickness costs, and relied on occupational health evidence that the Claimant was not fit to return to his own role or any other role at the hospital. It also took account of the later grant of tier 1 ill-health retirement by NHS Pensions in August 2018 as consistent with the position at dismissal.

The discrimination claims all failed. For indirect disability discrimination, the tribunal was not satisfied that the attendance management policy put staff sharing the Claimant's disability at a particular disadvantage, and in any event it found the policy proportionate. For discrimination arising from disability, it accepted that dismissal arose from sickness absence but held that the Respondent's action was a proportionate means of achieving the same legitimate aims. For reasonable adjustments, it rejected the alleged PCPs, found that the Claimant had not proved a continuing need for redeployment or a change of line management, and held that postponing the attendance process until he was fit to return was not shown to be a reasonable adjustment in the circumstances.