Mr O I Osadugba v St George’s Hospitals NHS Foundation Trust — 2023

The Claimant was employed as a Senior Staff Nurse in the Cardiothoracic Intensive Care Unit and was off work from August 2019 after being kicked in the head by a patient. The tribunal accepted that he was disabled at the material times because of post-concussion syndrome, and held that the Respondent ought reasonably to have known this by at least 25 June 2020 from the fit notes and occupational health information. It was not persuaded, on the limited evidence before it, that stress, anxiety and depression were separately established as a disability.

The direct disability discrimination complaint failed. The tribunal found that the Claimant was dismissed because he had been absent for about 14 months and there was no prospect of return in a reasonable time, not because of disability. It also found that no proper comparator case was made out for less favourable treatment.

The discrimination arising from disability and reasonable adjustments complaints also failed. The tribunal accepted that the sickness absence arose from disability, but rejected the allegations that the sickness meetings were too frequent, that the first dismissal letter’s reference to the disciplinary procedure changed the substance of the decision, or that the appeal documents issue showed unlawful treatment. On the appeal representation issue, the Respondent’s policy allowed accompaniment by a colleague or trade union representative, it offered an exception for a friend or family member, and the tribunal held that refusing legal representation was a proportionate means of achieving a legitimate aim in an internal capability process.

The harassment related to disability complaint was dismissed. The tribunal held that the complained-of conduct, including the timing of meetings, the wording and delay in the dismissal letters, the appeal process and the refusal of legal representation, was not conduct that could reasonably be characterised as unwanted conduct related to disability within section 26. It did not accept that the dismissal process was high-handed, malicious, insulting or aggressive on the evidence before it.

The unfair dismissal complaint was dismissed. The Respondent established capability as the reason for dismissal, relying on prolonged sickness absence, occupational health reports stating that the Claimant was unfit for work and unable to give a return date, and the effect of the absence on staffing in CTICU. The tribunal found that the Respondent followed its sickness absence procedure through the stage 1, stage 2 and stage 3 meetings, warned that dismissal was a possible outcome, and offered an appeal. It criticised the absence of an underlying GP or specialist report and noted the mistaken reference to the disciplinary procedure in the first outcome letter, but held that dismissal still fell within the band of reasonable responses and that, even if there had been procedural defects, they would not have changed the outcome.