In person For the v Respondent — 2023

Miss Emma-Jayne Richardson worked for EE Limited in its Broadband Technical Support Team in Plymouth and was dismissed on 6 July 2022 for capability/extended ill-health. The tribunal found that she had a mental impairment, diagnosed as panic disorder, which had a substantial and long-term adverse effect on normal day-to-day activities, and it accepted the respondent's concession that she was disabled throughout the relevant period. The case was heard by Employment Judge N J Roper with Ms H Scadding and Mr J Evans as members.

The claimant had a history of sickness absence linked to stress, anxiety and panic attacks, and the respondent managed her under its sickness absence policy through informal discussions, Stage One and Stage Two meetings, occupational health involvement, and a number of adjustments including altered shifts, flexible breaks, a stress risk assessment, a health passport update and other support. At the Stage Three meeting on 6 July 2022, the claimant said her fit note would expire shortly, that she expected to return to work within a week, and that she had recently started a new course of mental health treatment. Mrs Turner adjourned, took HR advice, and then dismissed her. The claimant appealed, but Mr Harrison upheld the dismissal. The claimant's indirect disability discrimination claim under s19 EqA was withdrawn at the hearing and dismissed on withdrawal.

On the section 15 EqA claim, the tribunal accepted that dismissal was unfavourable treatment and that the extended sickness absence arose in consequence of disability. The respondent's legitimate aim of having a workforce capable of attending regularly and doing the job was accepted, but the tribunal held that dismissal at that point was not a proportionate means of achieving that aim. It found that a short delay of two to four weeks would probably have clarified whether the claimant could return to work and whether the new treatment was helping, and it concluded that the respondent had not discharged the burden of justification.

On reasonable adjustments, the tribunal identified the sickness absence policy as the relevant PCP and found that the claimant was placed at a substantial disadvantage because her disability-related absence triggered sanctions under the policy. It rejected the claimant's suggestion that all mental health absences should simply be disregarded, and it accepted that the respondent had already avoided sanctioning her at every stage. However, it held that the respondent should have delayed the operation of the policy and the dismissal decision for a short period so that her stated ability to return to work could be assessed. The unfair dismissal claim also succeeded: applying section 98(4) ERA 1996 and the band of reasonable responses approach, the tribunal held that the respondent had not acted reasonably in dismissing when it did, given the claimant's imminent return to work, the lack of a current prognosis, and the availability of a short delay. The hearing was listed for liability only, and remedy was left to a later hearing.