Mr G Hales (Father of the claimant) For the v Respondent — 2019

The claimant was employed as a senior receptionist and the tribunal accepted that she was disabled by reason of a chronic back condition following surgery in 2015. It found that the respondent operated a sickness absence management process over a series of review meetings, with return-to-work forms, occupational health input, and an adjusted trigger-point system for the claimant. The tribunal accepted that some absences should have been disregarded or corrected, but found that the respondent generally reviewed each absence and had also put in place measures including amended hours, parking arrangements, workstation changes, a PEEP, and support from other staff.

On the reasonable adjustments claim, the tribunal held that the absence policy was a provision, criterion or practice and that it placed the claimant at a substantial disadvantage because many absences were disability-related. Applying Griffiths v Secretary of State for Work and Pensions, it nevertheless found the respondent's response reasonable. The respondent had increased the trigger points by 50%, in practice reset the absence count after sanctions, discounted short absences and some work-related absences, and considered redeployment and medical advice. The tribunal rejected the argument that all disability-related absences had to be disregarded, and it also rejected the contention that Remploy had to be instructed.

On harassment, the tribunal held that the pleaded incidents involving J, A, Ms Whittaker, and the July 2017 pay review were out of time under s123 Equality Act 2010. It declined to extend time on a just and equitable basis, finding that the incidents were isolated rather than continuing acts and that the claimant had not given a reason for the delay. The dismissal itself was considered as a possible act of harassment, but the tribunal found it was a professional meeting concerned with attendance levels rather than conduct related to disability, so the harassment claim was not upheld.

On discrimination arising from disability under s15 Equality Act 2010, the tribunal accepted that the dismissal was unfavourable treatment arising from sickness absence connected with the claimant's disability. It held, however, that the respondent had a legitimate aim of managing attendance and that dismissal was proportionate in light of the adjustments already made and the way the attendance policy had been applied. On unfair dismissal, applying the statutory fairness test and the approach in International Sports Co Ltd v Thomson, the tribunal found that the respondent had carried out fair attendance reviews, given warnings, allowed representations, and provided appeals. It therefore found the dismissal fair and the unfair dismissal claim was not upheld.