in person For the v Respondent — 2024

The claimant had been employed by the London Borough of Camden since 2006 and went off sick on 1 April 2021. He never returned to work and was dismissed on 22 November 2022 for ill health after a long absence. At a mediation in December 2021, the respondent agreed to obtain an independent occupational health report for ill-health retirement and not to use Medigold, because the claimant objected to that provider. Disability was conceded, including an underlying immunity condition, deafness, tinnitus and balance problems, liver problems, depression and anxiety.

On unfair dismissal, the tribunal found that Ms L'Esteve was effectively a joint decision-maker with Ms Stewart. The principal reason for dismissal was capability linked to absence, but the process was unfair because the respondent relied on inadequate and confused medical evidence, failed to explain what was needed, and moved straight to stage 3 without the medical evidence required by its sickness procedure. It also relied on unsupported assumptions about an irretrievable breakdown in relations and the claimant's supposed refusal to cooperate, and the appeal did not cure those defects. The dismissal therefore fell outside the band of reasonable responses.

The section 15 disability discrimination claim failed. The tribunal treated the alleged detriments as stopping sick pay on 28 March 2022, not reminding the claimant about sick notes, sending him to Dr Manavi, and failing to communicate for about eight months. It held that the sick pay provision was contractual and a proportionate way of managing resources, that the sick-note omission was an oversight, that the referral to Dr Manavi was a proper step to obtain medical evidence, and that the alleged non-communication was not made out.

The reasonable adjustments claim also failed. The tribunal identified the PCP as the application of the ill-health retirement procedure in the sickness management policy, but held that the procedure did not itself create the alleged disadvantage because it only enabled possible mutual termination, not dismissal. The proposed adjustments would not have changed that position, so the duty to make reasonable adjustments did not arise on the pleaded case.

Direct race discrimination was dismissed because race was not a material reason for the treatment complained of. The tribunal found that AL and ZM were not in materially similar circumstances, that the claimant was not denied redundancy because he had not applied for it, and that the real issue in relation to ill-health retirement was the absence of an occupational health certificate. Victimisation succeeded in part: the tribunal found that the respondent victimised the claimant by bypassing stages 1 and 2 of the sickness procedure, failing to recommend ill-health retirement, and dismissing him, because the claimant's earlier tribunal claims and his continued assertion that he had been discriminated against were taken into account. The remaining victimisation allegations were dismissed.