In Person For the second claimant: In Person For the v Mr hartley (Solicitor) — 2020

The tribunal, sitting before Employment Judge N W Beard with Mrs Mangles and Mrs Williams, heard the combined claims of Mr Turner and Mr Thomas against Royal Mail Group Ltd arising from long absences at Cardigan and later dismissal under the respondent's capability and absence procedures. It found both claimants to be disabled for Equality Act purposes, but distinguished between the earlier 2016 events and the later dismissal process in 2017. In relation to the older complaints, the tribunal applied the time-limit principles in section 123 of the Equality Act 2010, Hendricks v Metropolitan Police Comr., and Robertson v Bexley Community Centre, and it rejected any suggestion of a continuing act across the separate meetings.

Mr Turner's disability discrimination claims failed. On the section 15 complaints, the tribunal held that at the February 2017 stage the respondent did not know and could not reasonably have been expected to know that he was disabled, because the medical material then available did not show a long-term impairment. It also held that later letters and the information given for the June 2017 meeting were not unfavourable treatment, and that in any event the respondent was justified in explaining what might be considered at a long-term absence meeting. His section 20/21 complaint about the 6 June 2017 meeting, including the presence of a notetaker, also failed because the tribunal found no disadvantage from the notetaker and no causal link with disability.

Mr Thomas's section 15 and section 26 complaints about the 2016 meetings were held to be outside the time limit, with no continuing act and no just and equitable extension. His section 20/21 complaints about the 2016 absence and return-to-work arrangements were dismissed on the merits as well: the tribunal rejected the proposed adjustment of relocating Paul Williams, found that the respondent was not required to make the other suggested changes, and concluded that those steps would not have enabled a return to work. The tribunal also found that, for the later dismissal process, the respondent should have approached the matter by reference to the claimant's medical position rather than the assumptions being made at the time.

Both claimants succeeded on unfair dismissal. Applying section 98 of the Employment Rights Act 1996 and the approach in East Lindsey District Council v Daubney, the tribunal held that it was unreasonable to dismiss for capability without properly considering whether the behaviour at the June 2017 meetings was connected with their mental health, without obtaining updated medical evidence when the occupational health material was several months old, and without properly addressing the available ill-health retirement options. The tribunal said the appeal process did not cure those defects. It made no remedy award in this judgment and directed that a preliminary hearing be listed by telephone to prepare for a remedy hearing, leaving contribution and whether the claimants would have been dismissed in any event to be dealt with later.