Ms. M. Klusmann v University College London Hospital NHS Foundation Trust London Central Remote Hearing (CVP) 3,4,5,6, 9 August 2021 In chambers 10 August. — 2021

Ms M. Klusmann worked as a consultant paediatric radiologist for University College London Hospital NHS Foundation Trust and was dismissed in July 2019 on capability grounds after a long period of sickness absence linked to anxiety and depression, in the context of criminal proceedings about private work in NHS time. The tribunal allowed the claims to be amended so that both the original dismissal and the later appeal-stage decision not to reinstate in June 2020 were in issue.

On the unfair dismissal claim, the tribunal found the original dismissal fair. It accepted that the paediatric radiology service was under severe pressure, cover was fragile, and the panel was entitled to conclude that the claimant had already been absent for a very long time and might not return for several more months. Applying section 98 ERA 1996 and the authorities cited on long-term sickness absence, the tribunal held that dismissal at that point was within the range of reasonable responses.

The appeal-stage decision was different. By the time of the appeal the claimant had been acquitted, had a fit note, and occupational health said she was fit to return with only a short phased return. The tribunal found that the appeal panel moved away from capability and relied instead on managers' views about alleged fraud, trust, grievance issues, and supposed disruption to the team. Those matters had not been properly investigated or put to the claimant, and the tribunal held that this made the appeal decision unfair. The unfair dismissal claim therefore succeeded overall.

The disability discrimination claim under section 15 of the Equality Act 2010 failed. The tribunal accepted that the long absence arose from anxiety and depression, but held that the dismissal-stage decision was justified as a proportionate means of achieving the legitimate aim of maintaining a sustainable service. It then found that the later refusal to reinstate was not treatment because of something arising from disability at all, but was driven by the managers' belief that the claimant had committed fraud and would not be able to work with them or the team. Remedy was not decided in this judgment and was listed for a further hearing in January 2022.