Mr A Ohringer, Counsel For the v Respondent — 2021

The tribunal found that Ms Fatoye-Adeloye worked as a senior nursing assistant in a role that required prolonged standing, walking and manual handling. After her pituitary tumour surgery and ongoing health problems, the respondent received occupational health advice from 2016 onward indicating that she had limitations affecting heavy lifting, manual handling, standing and fatigue, and that adjustments or redeployment should be considered. The respondent's sickness absence and redeployment policies, and the way they operated in practice, were central to the case.

The first reasonable adjustment claim succeeded. The tribunal held that requiring the claimant to continue in her substantive nursing role was a PCP that placed her at a substantial disadvantage, and that the respondent knew or should have known of that disadvantage. It found that the respondent's internal policies limited managers to trying adjustments within their own directorate or requiring the claimant to compete for other posts, rather than proactively moving her into a suitable sedentary or administrative role. The tribunal concluded that a non-competitive transfer into suitable alternative employment would have been a reasonable adjustment, and that the claim was in time as part of conduct extending over a period that continued to dismissal.

The second reasonable adjustment claim failed. It concerned the claimant being required to take part in competitive interview and application processes for vacancies she sought in October 2017, December 2017 and February 2018. Although later occupational health advice said she experienced headaches, forgetfulness and stress in interview situations and suggested extra time, breaks and a facilitator, the tribunal found that at the time of those interviews the respondent did not have enough medical information to know that the interview process itself placed her at a substantial disadvantage.

The tribunal upheld the section 15 discrimination arising from disability claim. It found that the dismissal on 12 August 2018 was because of the claimant's sickness absence and inability to fulfil her contractual role, and that those matters arose in consequence of her disability. The respondent relied on the need to provide a safe service to patients and staff as a legitimate aim, but the tribunal held dismissal was not proportionate in circumstances where the respondent had failed to make the reasonable adjustment found under the first adjustment claim.

The ordinary unfair dismissal claim also succeeded. The tribunal accepted that capability was the reason for dismissal and that there had been significant consultation, but held that the process was unfair because Mr Hill did not sufficiently investigate available alternative work before dismissing the claimant. In particular, the tribunal referred to outstanding redeployment options, including the Cancer Data Admin Assistant role, and said the respondent had not properly explored whether other roles, including non-permanent or higher-band posts, could have been considered. A remedy hearing was listed for 9 March 2022, so no monetary award was decided in this judgment.