In person For v Respondent — 2019

The claimant, who had been employed since 3 September 2007, was found to be disabled at the material times with a back condition related to spine and nervous system problems exacerbated by stress. The tribunal accepted that she had previously worked in a processing role that allowed her to move around more easily, and that later changes to a role at Holmes Road, together with prolonged sickness absence from December 2014, led to repeated occupational health involvement. The medical evidence repeatedly recommended adjustments such as a supportive chair, micro-breaks, home working where possible, reduced hours, and work in a role with more control over the pace and environment.

The respondent decided on 5 October 2016 to dismiss the claimant for capability, with written reasons following on 12 December 2016. The majority held that the dismissal was discrimination arising from disability under section 15 Equality Act 2010: the reason for dismissal was absence from work, which arose in consequence of disability, and dismissal was not a proportionate means of achieving the respondent's aims of attendance and service delivery. The majority placed weight on the long-running mismatch between occupational health advice, which indicated a return might be possible with adjustments, and GP fit notes saying she was not fit for work, as well as the absence of a clear written package of adjustments that could be put to occupational health and the claimant's GP. The tribunal also considered that the claimant should have been given time to absorb the grievance outcome before any dismissal decision. The minority would have found the dismissal fair and justified.

The tribunal unanimously rejected direct disability discrimination because it found no evidence that the dismissal was because of disability. It also dismissed the reasonable adjustments claims. The earlier alleged failures about the chair, processing role, return to Cressy Road, extra breaks, home working, reduced hours, phased return and redeployment were held to be very substantially out of time and not just and equitable to extend, and the tribunal treated the dismissal-stage position as falling to be analysed under section 15 rather than as a separate failure to make adjustments. On the unfair dismissal claim, the majority held that the respondent had not investigated sufficiently, had not waited long enough before dismissing, and that the delay in the grievance and appeal process made the dismissal unfair.