Mr K Thomas v British Gas Trading Limited — 2020

The claimant was dismissed after a Stage 4 absence management meeting. The tribunal found that the respondent had applied its absence management process over a lengthy period, that the claimant had been given repeated review periods and warnings, and that the decision-maker dismissed him because of his absence record and capability. It rejected arguments that sabbatical, dependent leave, trade union activity or grievances were used against him in deciding to dismiss.

For the s.103A claim, the tribunal found that the claimant made protected disclosures at the Stage 4 meeting and in an email later the same day concerning GDPR/confidentiality and personal data. However, it found that those disclosures did not consciously or unconsciously form part of the dismissing manager's reason for dismissal. The automatic unfair dismissal claim was therefore dismissed.

On ordinary unfair dismissal, the tribunal found the reason for dismissal was capability due to absence and that this was a potentially fair reason. It rejected the claimant's challenges about progression to Stage 4, targets, consistency, inclusion of current absence and lack of occupational health referral, and concluded that dismissal was within the band of reasonable responses.

On disability, the tribunal accepted that the claimant had some form of stomach or digestive impairment from October 2018, but found he had not proved a long-term substantial adverse effect on normal day-to-day activities. The s.15 Equality Act claim was dismissed because he was not a disabled person at the relevant time; alternatively, the tribunal found the treatment would have been justified by the legitimate aim of managing sickness under the absence management policy.