In person assisted by Mr R Loft For the v Respondent — 2021

The claimant worked for Boots as a sales assistant for 13 years and was dismissed on 19 August 2019 for capability/ill-health after a long period of absence. The tribunal found that her absence from 4 September 2018 to 11 February 2019 was due to a foot stress fracture, and that from 11 February 2019 to dismissal it was due to a shoulder fracture and later frozen shoulder. Her appeal was heard by Ms Roden, who upheld the appeal and offered reinstatement with a phased return, but the claimant declined that offer.

The tribunal rejected the case that the shoulder condition amounted to a disability within section 6 Equality Act 2010. It found that the treating doctors' evidence showed good progress and only a relatively modest remaining impairment, and it was not satisfied that the shoulder condition was likely to have a substantial adverse effect on day-to-day activities lasting 12 months or more. It also rejected the suggestion that earlier episodes of stress, anxiety and depression could be aggregated into a recurrent mental impairment for the purposes of the Act.

On unfair dismissal, the tribunal held that the stage 3 dismissal would have been procedurally unfair if considered in isolation because Ms Poskitt did not properly explore rehabilitation or the claimant's request for an outline return-to-work plan before her consultant appointment on 4 September 2019. However, it found that Ms Roden's appeal hearing was fair and open-minded, that reinstatement and a phased return were offered, and that the appeal cured any earlier unfairness so that the overall dismissal was fair. In the alternative, the tribunal would have applied a 100% Polkey reduction.

The discrimination arising from disability complaint failed because the dismissal was found to arise from the shoulder injury and related absence, not from a disability within the meaning of the Act. The reasonable adjustments complaint failed because no disability was established and, alternatively, the tribunal held that the respondent had met any duty in the circumstances. No monetary award was made.