Mr J Close v The Secretary of State for Justice — 2021

The claimant was a prison officer who dislocated his shoulder during control and restraint training on 7 August 2019 and remained absent from work awaiting surgery. The respondent accepted that by 18 March 2020 he was disabled. The dismissal took effect after an appeal hearing on that date, when the claimant said surgery was scheduled for 27 March 2020, though the appeal manager doubted it would proceed because of the developing Covid-19 situation.

The tribunal accepted that the respondent had legitimate aims relating to attendance, effective service, safe staffing, and operational needs. However, it found dismissal on 18 March 2020 was not reasonably necessary. The tribunal considered that the decision should have been deferred while the position on surgery was clarified, particularly given the prognosis of recovery after surgery, the claimant's injury having occurred on duty, the size and resources of the respondent, and the absence of evidence that the prison could not operate safely for the further period.

For the same reasons, the tribunal found that deferring the decision would have been a reasonable adjustment to the attendance management PCP. It also found the dismissal unfair because the appeal decision was made without sufficient information, gave weight to matters of limited relevance such as earlier attendance history, and did not take account of the claimant's disability and the duties arising from it.