In person For the v M r Soanes, Solicitor — 2021

The claimant worked for Higgidy Ltd as a kitchen assistant from 18 June 2015 until her dismissal on 13 July 2019. The tribunal accepted that she was disabled within the meaning of the Equality Act 2010 because of depression and anxiety, and that the respondent knew of her condition. The central issues were whether her dismissal for capability and/or some other substantial reason was fair, and whether it was discriminatory for a reason arising from disability under section 15 of the Equality Act 2010.

The tribunal found that the respondent had taken a series of steps over time to support the claimant, including keeping her in the packing room, obtaining occupational health advice, dealing with complaints about her work, and later discussing possible return-to-work options. It found that by spring 2019 the claimant was on long-term sickness absence, that occupational health reported entrenched barriers to a return, and that the claimant said she would not return to the red shift, would not move to days, and did not feel able to work on the blue shift while DG remained there. The tribunal rejected the claimant's case that the respondent should have moved DG as an adjustment and found that DG had been moved earlier for reasons unrelated to the claimant and was settled on the blue shift.

On unfair dismissal, the tribunal held that the dismissal followed a genuine welfare meeting and capability hearing, with proper consultation and up-to-date occupational health evidence, and that the respondent genuinely believed the claimant was unlikely to return in the foreseeable future. It found that dismissal was a last resort after a fair process, and that the decision not to require DG to move was within the range of reasonable responses. On the section 15 claim, the tribunal held that the dismissal was unfavourable treatment linked to something arising in consequence of disability, namely the claimant's long-term sickness absence and her refusal to return to work on the blue shift with DG, but it was justified as a proportionate means of achieving the legitimate aim of maintaining a reliable and effective workforce. The claim was therefore dismissed in full and no monetary award was made.