Mr T Challacombe of Counsel For the v Respondent — 2021

Miss Saward was employed as an administrator from June 2015 and was dismissed for capability on 17 January 2020 after prolonged sickness absence. The tribunal accepted that she was disabled by reason of fibromyalgia, chronic fatigue syndrome, seasonal affective disorder, and anxiety and depression, and that Citizens Advice Plymouth knew of those disabilities. It found that the respondent had put in place at least 32 workplace adjustments over time, including ergonomic equipment, reduced hours, phased returns, breaks, and other practical support, and that by late 2018 the claimant said she was satisfied with the workstation adjustments then in place.

On the reasonable adjustments claim, the tribunal identified the relevant PCP as the requirement to comply with the respondent's attendance requirements while the claimant was getting used to the keyboard/wrist rest, mouse and headset recommended through Access to Work. It held that the PCP did not place her at a substantial disadvantage compared with a non-disabled person, because the new aids were materially similar to equipment already in use, Dragon software could not be installed, and there was no evidence that the refusal to suspend the capability process for three months created a disability-related disadvantage of more than a minor or trivial kind. The reasonable adjustments claim was therefore dismissed.

On the section 15 claim, the tribunal treated the refusal to suspend the sickness absence process for three months as unfavourable treatment, but held that Mrs Handley did not decide against the moratorium because of something arising in consequence of disability. The tribunal found that she acted because the recommendation was inconsistent with the policy, the Dragon recommendation was not being implemented, and the existing aids were already substantially in place. The dismissal itself was found to be unfavourable treatment arising from sickness absence linked in part to disability, but it was justified as a proportionate means of achieving the legitimate aim of maintaining reasonable attendance and the effective operation of the respondent's service.

The unfair dismissal claim also failed. Applying section 98(4) ERA 1996 and the band of reasonable responses, the tribunal held that the respondent had followed its capability procedure, consulted the claimant, obtained medical input, considered reasonable adjustments and redeployment, and was entitled to dismiss given the length of absence, the impact on colleagues and service delivery, and the claimant's stated reluctance to return to work. All claims were dismissed and no award was made.