Ms S Afitlhile. First v BUPA Care Homes (GL) Ltd. Second Respondent: Jane Madden. Third Respondent: Dawn Murphy. — 2019

Ms Afitlhile worked as a registered nurse at Cleveland House from 7 November 2002. After a left knee replacement in 2008 and a further operation in November 2017, she returned to work with temporary restrictions on night shifts, which the respondent implemented. During 2018 the respondent arranged occupational health assessments, although some appointments were missed or not attended. The occupational health report dated 20 December 2018 recorded significant mobility difficulties, concerns about emergency evacuation, CPR, manual handling, and a risk of further damage to the lower limbs.

The claimant was placed on paid ill-health suspension on 21 December 2018 and dismissed after a capability hearing on 3 January 2019. Dawn Murphy concluded that there were no suitable adjustments or alternative roles, and Jane Madden upheld the dismissal on appeal on 6 February 2019. At the outset of the hearing the tribunal allowed amendment so that the case proceeded not only on race and disability discrimination, but also on a section 15 claim and a reasonable adjustments claim.

On unfair dismissal, the tribunal accepted that capability was the reason for dismissal and that it was a potentially fair reason under section 98(2) ERA 1996. Applying the section 98(4) test and the band of reasonable responses approach, it held that the respondent had a genuine and reasonable belief in the claimant's lack of capability, based on the occupational health evidence and the process followed. The tribunal noted that the claimant and her representative had agreed with the medical report at the capability stage and appeal, and that alternative roles had been considered.

The race discrimination claim was dismissed because the tribunal found no credible evidence that the dismissal was because of race. No facts were established from which the tribunal could infer race discrimination, and the claimant had not shown that a white employee would have been treated differently in the same circumstances. The burden of proof therefore did not shift to the respondent.

On disability, the tribunal accepted that the claimant was disabled but rejected direct disability discrimination because the dismissal was found to be because of capability rather than disability itself. It then held that the dismissal was unfavourable treatment arising from disability, but that it was justified as a proportionate means of achieving the legitimate aim of protecting the health and safety of the claimant, residents and staff. The tribunal also rejected the reasonable adjustments claim, finding that the respondent had already removed night shifts, considered other roles, and was not required on these facts to continue capability meetings or seek further medical evidence. All claims were dismissed and no tribunal award was made.