In person For the v Ms Nicolaou, Solicitor — 2022

The tribunal found that the claimant was disabled at the material time because of depression, not asthma. It accepted that the condition had been long term and that the claimant's evidence about walking the streets, crying, and having suicidal thoughts showed a substantial adverse effect on normal day-to-day activities, despite limited early medical evidence.

The direct disability discrimination claim failed. Although the respondent knew the claimant had some mental health problems, the tribunal was not satisfied that the dismissal was because of disability or that the claimant had shown less favourable treatment compared with a non-disabled employee in materially similar circumstances. The tribunal accepted the respondent's explanation that the dismissal was driven by the claimant's lengthy absence, his refusal to engage with management, and his statement that he would not return to work until his tribunal case had been heard.

The unfair dismissal claim also failed. The tribunal found that the dismissal was for capability, namely inability or unwillingness to attend work, and that the respondent acted fairly under s.98(4) ERA 1996. It relied on the respondent's occupational health referral, repeated invitations to capability hearings, efforts to identify light duties, and the appeal process. Applying the band of reasonable responses approach, the tribunal held that dismissal was not unfair.

At the end of the judgment the tribunal also dealt with the deposits that had been ordered earlier in the proceedings. It held that its reasons for rejecting the claims were substantially the same as those given when the deposits were ordered, and directed that the total £1,000 deposit be paid to the respondent under Rule 39(5)(b) of the Employment Tribunal Rules of Procedure 2013.