Claimant v The Secretary of State for Justice — 2017

The Claimant, a prison officer, had been absent from work since an assault at work in November 2014. The Respondent accepted that he was disabled by reason of chronic jaw pain and post-traumatic stress disorder. Occupational health reports consistently recorded that he was then unfit for work, but that recovery and a return to work were expected, although the timescale was uncertain.

The Tribunal found that the reason for dismissal was capability and that this was a potentially fair reason. However, it held the dismissal unfair because the Respondent dismissed while an occupational health physician report and a pain management appointment were outstanding. The Tribunal found the Respondent should have waited for the report and discussed it with the Claimant, and that the appeal did not cure the defect. It did not find that a further referral specifically for ill-health retirement was required, given the medical advice and the Claimant's wish to return to work.

The direct disability discrimination claim failed because the Tribunal found no basis to conclude that a comparator with the same absences and prognosis would have been treated differently. The s.15 claim succeeded because dismissal was unfavourable treatment arising from disability-related absence and lack of prognosis, and the Respondent had not clearly articulated and established a legitimate aim for justification. The reasonable adjustments claims failed because of insufficient evidence and submissions on the alleged adjustments, and the accompaniment complaint also failed on the facts found.