Mr N Toms, of Counsel For the v Respondent — 2020

The claimant’s remaining case was limited to section 15 Equality Act 2010 discrimination arising from disability, in relation to three episodes of attendance management in December 2018 and January 2019. The respondent accepted that the claimant was disabled and knew of her disabilities at the material time. The tribunal also recorded the respondent’s stated aims of managing attendance fairly and effectively, reducing sickness absence, and balancing the impact of absence on the business and other employees.

On the first allegation, the tribunal found that the 7 December 2018 call between Mrs Costello and the claimant did refer, by implication, to the possibility of a formal attendance process and possible ill-health dismissal, although not imminently or inevitably. It held that this was unfavourable treatment arising from the claimant’s disability-related sickness absence, but that the respondent’s actions were justified as a proportionate means of achieving the legitimate aim of reducing sickness absence and its impact on the business.

On the second allegation, the tribunal did not accept that the 12 December 2018 email amounted to telling the claimant to return to work immediately or take redundancy in order to avoid dismissal. It found that the evidence did not support an ultimatum of that kind, and that the correspondence was instead dealing with several possible scenarios arising from the claimant’s ongoing absence and the restructuring process. That allegation therefore failed because the pleaded treatment was not proved.

On the third allegation, the tribunal found that the 9 January 2019 meeting was a formal attendance review meeting rather than a capability hearing, but that it did involve consideration of whether the claimant’s long-term sickness absence could continue to be supported and whether dismissal might later follow under the Attendance Policy. The tribunal held that this was unfavourable treatment arising from disability, but again concluded that it was proportionate and justified. No award was made because all remaining section 15 claims were dismissed.