In person For the v Respondent — 2019

Ms C Nahum worked in a busy cardiology appointments role at Kings College Hospital NHS Foundation Trust and had long periods of sickness absence because of hypertension and a depressive illness, which the respondent accepted amounted to a disability. Occupational health recommended a phased return with reduced hours and avoidance of stressful or patient-facing duties, and the respondent allowed her to return on restricted duties from August 2016. Over time she worked up to 30 hours a week, did not work on Mondays, and did not carry out face-to-face patient work. By mid-2017 the respondent considered those adjustments could no longer be sustained and, after sickness review and appeal hearings, dismissed her for capability due to ill health; the dismissal took effect on 17 November 2017.

The tribunal dismissed the unfair dismissal claim. It accepted that capability was a potentially fair reason, that the respondent kept the claimant's health under review, followed occupational health advice, supported a phased return over an extended period, and carried out a documented search for redeployment. Applying s.98(4) ERA 1996 and the band of reasonable responses, it found the decision to dismiss was within the range of responses open to a reasonable employer in a small, very busy department, and that further enquiry or delay would not have changed the outcome.

On reasonable adjustments, the tribunal accepted that requirements to work full time and to do patient-facing work were PCPs that placed the claimant at a substantial disadvantage because of her disability. It nevertheless found that the respondent had made reasonable adjustments for a prolonged period and that permanent continuation of reduced hours and restricted duties was not reasonable given the impact on service delivery, the staffing pressures in the department, and the claimant's inability to say when she could return to full duties. The related complaints about working on Mondays, working full time in redeployment roles, and making up time for hospital appointments failed because the claimant did not prove those PCPs or the alleged disadvantage. The tribunal also dismissed the s.15 claim, finding that dismissal was a proportionate means of achieving the legitimate aim of efficient service delivery, and dismissed the harassment claim because the challenged comments formed part of a properly conducted sickness management process rather than unlawful harassment. No monetary award was made because all claims failed.