Mr L Morton-Buwerimwe v Plusnet plc HELD in Leeds — 2023

The claimant was dismissed under the respondent's attendance management procedure after a prolonged period of absence, including continuous absence from 3 December 2019 to 3 October 2020 and further earlier absences that had already led to a six-month warning in June 2019. The tribunal accepted that the claimant had a mental impairment that amounted to a disability, but the claims before it were unfair dismissal, race discrimination and victimisation. It found that the dismissal was properly categorised as dismissal for some other substantial reason, with overlap to capability, because Mr Wood concluded there was no confidence that the claimant would be able to maintain acceptable attendance in future.

On fairness, the tribunal held that the respondent acted within the band of reasonable responses under section 98(4) ERA 1996. It found that the respondent had tried to engage the claimant through welfare contact, a referral to occupational health and a referral to "rehab work", but that the claimant did not engage consistently, did not attend occupational health appointments in May 2021, did not respond to the follow-up email of 3 June 2021, and did not put forward any positive proposal for a return to work. The tribunal also found that the appeal was treated as withdrawn after the claimant did not attend the appeal meeting and did not respond to further email contact.

The race discrimination claim failed because the tribunal found that the reason for dismissal was attendance and capability-related, not race. It rejected the comparator case based on Roheel Mohammed as not materially comparable under section 23 Equality Act 2010, and held that the absence of equality monitoring entries was not enough to shift the burden of proof under section 136. The victimisation claim also failed: although the earlier tribunal proceedings were protected acts, the tribunal found that the appointment of Mr Wood arose from the normal HR and management process for dealing with prolonged sickness absence, and that there was no evidence that the respondent acted with a retaliatory purpose. All complaints were therefore dismissed.