Mrs J Grant v The Commissioners for Her Majesty’s Revenue and Customs — 2021

The claimant was dismissed on ill-health capability grounds after periods of sickness absence, including a final absence from September 2018 connected with anxiety and depression. The tribunal accepted capability as the reason for dismissal, but found that the respondent had not reasonably established that there was no realistic prospect of the claimant returning within a reasonable time. Occupational health advice had pointed to a psychiatric assessment, possible changes to medication, and a potential further referral once treatment was established.

The tribunal found that by late November and early December 2018 the claimant had consistently indicated a likely return in early January 2019 if the change in medication went well. Internal HR advice had suggested supporting the absence at least until the effect of the new medication was known, and the claimant's manager accepted the department could have coped with the absence until January and even March. The tribunal concluded that dismissal in December 2018 was outside the range of reasonable responses.

For similar reasons, the tribunal upheld the section 15 disability discrimination claim, finding that dismissal was unfavourable treatment arising from disability-related sickness absence and was not a proportionate means of achieving the respondent's legitimate aim. The reasonable adjustments claim succeeded as to the attendance procedure, because allowing approximately a further month to assess the claimant's return would have been a reasonable adjustment. The telephony reasonable adjustments claim failed: while the expectation to take calls was a PCP and likely placed the claimant at a disadvantage, the tribunal was satisfied that reasonable telephony adjustments would have been made had she returned.