Mr Tom Tabori, Counsel For v Respondent — 2020

RK had worked for the NHS Trust since 2003 as a Trainee Biomedical Scientist. The tribunal found longstanding performance concerns, repeated support and informal management, and continuing errors that created a serious risk to patient safety. It accepted that the dismissal reason was capability and that the reason given in the dismissal letter accurately recorded that RK was dismissed for unsatisfactory performance.

The unfair dismissal claim succeeded because, although the respondent had reasonable grounds and had carried out a reasonable investigation up to the point of dismissal, the overall procedure was unfair when Stephen did not arrange an appeal hearing after RK asked to appeal and asked to be represented by her brother and father. The tribunal rejected the other criticisms of the dismissal process, including complaints about the portfolio, support, workload, breaks and the use of performance management.

On disability discrimination, the tribunal found that at the time of dismissal the Trust did not know, and could not reasonably have been expected to know, that RK was disabled. It found that the fit notes and limited family information did not reveal the full medical position, and that RK had cancelled or not completed occupational health steps that might have clarified matters. The pre-dismissal section 15 claim therefore failed. The tribunal also rejected the reasonable adjustments claim, holding that the national standards and performance management process did not place RK at a substantial disadvantage in the relevant sense and that the respondent had already provided extensive support.

The position changed by the appeal stage, when RK was clearly very unwell and in hospital with serious mental ill health. The tribunal held that Stephen should have fixed an appeal hearing once RK said that her brother and father would represent her, and that the failure to do so was at least in part something arising in consequence of disability and was not justified. It said that an appeal would have allowed a fuller examination of RK’s medical position and might have led to consideration of ill-health dismissal and any benefits, but those matters were left for remedy. No compensation figure was determined in this judgment.