In person For the v Respondent — 2021

Mr Nicholas Wooster was employed by HM Prison Service as a Band 3 Prison Officer at HMP Exeter. After a knee injury on 17 August 2019, he returned on restricted duties and was referred to Occupational Health on several occasions. The tribunal found that the claimant remained unable to undertake control and restraint, which the tribunal accepted was an essential part of the role, and that the respondent followed its Attendance Management Policy and phased return guidance while managing his position over a period of more than six months.

The claimant was invited to a formal absence review meeting on 16 April 2020. Governor Luscombe considered the medical evidence, the operational impact of continued restricted duties, and the alternatives available. The claimant was offered a regrade/downgrade with two years' pay protection at HMP Exeter or HMP Channings Wood, but he declined those offers and also did not wish to pursue ill-health retirement. The governor dismissed him for medical inefficiency / capability, and Mrs Jeannine Hendrick rejected the appeal after a full rehearing on 18 May 2020.

The tribunal applied section 98(2)(a) and section 98(4) of the Employment Rights Act 1996, together with the authorities it listed including Spencer, Daubney, BS v Dundee City Council, Taylor, Adeshina and Polkey. It held that the respondent had all relevant medical information when it decided to dismiss and when it heard the appeal, that the absence of an in-person Occupational Health examination and the later report did not make the process unfair, and that the claimant could not be supported on restricted duties indefinitely. The unfair dismissal claim was dismissed. The judgment also records that the claimant presented the claim as unfair dismissal only and that there was no disability discrimination claim.