Mr S Brittenden, Counsel For the v Respondent — 2021

The Claimant worked at HMP Wormwood Scrubs as a Specialist Instructor in the repair and recycle workshop. The Respondent accepted that his longstanding back condition amounted to a disability. The evidence was that, after a flare-up in late 2018, Occupational Health said he should be able to return to work with temporary exemption from searching duties and without working alone, and on 11 February 2019 said he was only fit to undertake a proportion of activities and could not do repeated bending, prolonged walking, or other duties that aggravated his back pain. After that report, Ms Taylor moved him out of the Workshop to the Coffee Shop, and Ms Pennington later convened a formal attendance review meeting that led to dismissal for medical inefficiency on 4 March 2019.

On the Equality Act claims, the tribunal accepted that the dismissal was because of something arising from disability, namely the Claimant's inability to perform regularly and safely the full range of duties in the Workshop. It held that the Respondent had acted somewhat precipitately because it had not sufficiently identified which tasks the Claimant could and could not do in practice, and had not properly explored or trialled possible adjustments. Although the Respondent was pursuing legitimate aims connected with prison efficiency and prisoner activity, the tribunal found the dismissal decision was not a proportionate means of achieving those aims and that the Respondent was in breach of s.21 of the Act. The tribunal also found that, for the same reasons, the s.15 claim succeeded.

The unfair dismissal claim was nevertheless rejected. Applying s.98 Employment Rights Act 1996 and the range of reasonable responses test, the tribunal held that reasonable employers could have dismissed on 4 March 2019 in light of the prognosis, the recent periods of absence, the need for continued support with essential duties, the Claimant's refusal to consider redeployment, and his decision not to appeal. It also rejected the submission that the dismissal was procedurally unfair because the policy provisions relied on by the Claimant were directed to sickness absence dismissals, whereas this decision was based on what the Respondent believed the Claimant could do while at work.

For remedy, the tribunal treated causation and future employment as speculative. It found the Claimant would probably have remained employed for a further two months while adjustments were investigated, then had a 50% chance of staying in the Workshop for the next 12 months and a 25% chance of a further 12 months after that, with no award beyond May 2021. It accepted the Claimant's mitigation evidence in part, applied a 10% discount for failure to mitigate, and recorded the parties' agreed figures as £12,279.82 for pecuniary loss inclusive of interest and £13,859.50 for injury to feelings inclusive of interest, making a total award of £26,139.32.