Mrs K Thomas v Bridgend County Borough Council — 2022

Mrs K Thomas was employed by Bridgend County Borough Council as a loans and investment officer and was dismissed on capability grounds after long-term sickness absence from 2 September 2019. The tribunal treated disability as conceded from that date. It considered unfair dismissal, discrimination arising from disability under s15 EqA, and reasonable adjustments under ss20/21 EqA, including an auxiliary-aid complaint. The tribunal also noted that some discrimination time-limit issues arose, but did not need to resolve every limitation point because the claims failed on the merits.

On unfair dismissal, the tribunal accepted capability as the potentially fair reason. It found that the dismissing officer and the appeal panel genuinely believed the claimant was unable to do the role, that there had been substantial consultation through welfare meetings, calls and emails, and that the employer had adequate up-to-date medical evidence from GP fit notes and occupational health reports. It rejected the argument that further occupational health referral or more delay would have changed the position, and it held that the dismissal was within the range of reasonable responses. It also rejected procedural unfairness arguments based on the absence management process, the grievance timetable during the pandemic, and the timing of the dismissal meeting, noting that the claimant was offered an adjournment and declined it.

For the s15 EqA claim, the tribunal accepted that dismissal was unfavourable treatment and that the relevant "something" was the claimant's sickness absence arising from disability. It held, however, that the respondent established justification. The legitimate aim identified was maintaining a workforce available to deliver public functions, and the tribunal found dismissal proportionate in circumstances where the claimant had been absent for nearly 18 months, could not give any return date, and would not engage with phased return options. The tribunal therefore dismissed the discrimination arising from disability claim.

On reasonable adjustments, the tribunal rejected the first four pleaded PCPs. It found that the claimant had not proved a practice of requiring duties beyond her job description, or a practice of only discussing generic SRA headings instead of her specific stress triggers. It treated the grievance-timing complaint as a complaint about delay only and found that the grievance had been handled as quickly as possible during the pandemic. It also held that the occupational health recommendation about a recovery period was contingent on the claimant's issues being resolved first, which had not happened. The fifth PCP, requiring a return to the substantive role, was accepted, but the tribunal found that the respondent had considered phased return and redeployment as far as the claimant would engage. The auxiliary-aid complaint failed because there was no evidence that the claimant could not process verbal information and no request for an amended job description. No monetary award was made because all claims were dismissed.