Ms C Mangaporo, Lay representative And In person For the v Respondent — 2023

The claimant, Mr L S Garcia, brought a single claim of discrimination arising from disability under section 15 Equality Act 2010, based on his dismissal by Guy’s and St Thomas’ NHS Foundation Trust on 10 January 2022. It was agreed that he was disabled by reason of arm and neck conditions and that the relevant “something arising” was his sickness absence from 29 April 2020 onwards. Knowledge of disability was not in dispute, so the tribunal had to decide only whether the dismissal was a proportionate means of achieving a legitimate aim.

The tribunal accepted the Trust’s stated aims: ensuring staff were capable of performing their duties, maintaining staffing levels, delivering services safely and efficiently, using public money appropriately, protecting productivity, and protecting patient safety. It found that the claimant worked as a band 3 healthcare assistant in the Brompton Hospital Adult Intensive Care Unit, that his absence left the unit with at most one HCA on duty, and that this increased pressure on nurses. The tribunal also accepted that the Covid-19 pandemic made the unit busier and increased the importance of HCA support.

The tribunal found there were no “light duties” in AICU because the work involved physically demanding tasks with very ill and sedated patients. It accepted that the Trust could not keep the HCA post open indefinitely and that, after an extended period of sickness absence, it was proportionate to move to redeployment. The tribunal accepted the Trust’s evidence that vacancies were few during the relevant period and that it had made reasonable efforts to identify alternatives.

In its proportionality analysis, the tribunal found that the Trust had taken reasonable steps to look for suitable work, including discussions about an administrative role, outpatient HCA work, a phlebotomy role, and a temporary cashier role. It found that the outpatient HCA and phlebotomy options were not suitable for the claimant on the evidence, that there was no administrative vacancy in AICU in summer 2021, and that the cashier role was temporary and properly ended when the claimant took absence and was later signed off again. The tribunal therefore held that the dismissal was a proportionate means of achieving a legitimate aim and dismissed the claim. It also recorded that there would not be a remedy hearing.