In person, assisted by her husband Mr Treseder For the v Respondent — 2022

The claimant, a disabled employee by reason of depression, was dismissed for capability following extended ill-health absence. At the start of the judgment the tribunal recorded that the direct disability discrimination claim was withdrawn and dismissed on withdrawal by the claimant. The remaining live discrimination claims were discrimination arising from disability and failure to make reasonable adjustments, together with unfair dismissal.

On the section 15 EqA claim, the tribunal accepted that the dismissal was unfavourable treatment arising from the claimant’s long-term sickness absence, which itself arose from her disability. It nevertheless accepted the respondent’s stated legitimate aims, including patient care and the needs of the audiology service, helping staff return to work, and improving staff health, wellbeing, attendance and performance. Applying proportionality analysis, the tribunal found dismissal was justified because the claimant had been absent for over a year, there was no imminent return, the respondent had up-to-date medical evidence, there were service difficulties caused by the absence, the claimant did not wish to pursue redeployment or further adjustments, and she agreed at the time that dismissal was appropriate.

The reasonable adjustments claims also failed. The tribunal found that the first alleged PCP, a requirement to work the changed rota pattern, had not in fact been imposed: the December 2019 rota was only a proposal, and the respondent remained willing to seek agreement. It also found no substantial disadvantage was established on the evidence, and in any event that claim was out of time because proceedings were brought about 18 months late with no basis for a just and equitable extension. The second alleged PCP, a requirement to work extended hours or through lunch, was likewise rejected because no such requirement had been imposed and the tribunal found that claim was also out of time.

The unfair dismissal claim was dismissed. The tribunal accepted capability was a potentially fair reason under section 98(2)(a) ERA 1996 and applied section 98(4). It found the respondent had consulted the claimant, obtained occupational health evidence, considered the impact on the service and patients, and had no realistic further option once the claimant remained unfit for work and did not want redeployment. The dismissal was found to fall within the band of reasonable responses. No monetary award was made.