Mrs D Brightman v TIAA Limited — 2019

Mrs Brightman began work with South Downs Health NHS Trust on 26 November 2008 as a Principal Auditor and TUPE-transferred to TIAA Limited on 1 January 2014. The tribunal accepted that she was disabled, with severe brittle asthma, a blood clotting problem and a slipped disc, and that the respondent had already made a number of adjustments, including reduced hours, an annualised-hours arrangement and changes to work allocation. It also accepted that she was a valued member of staff and performed her duties capably when she was able to attend work. Her claim was issued two days late, but the tribunal extended time for the discrimination claims on a just and equitable basis and for unfair dismissal because it was not reasonably practicable to present the claim in time while she was in hospital and intensive care on the deadline date.

The unfair dismissal claim failed. The tribunal found that the reason for dismissal was capability, namely the claimant's high absence levels in 2015 and 2016 and the respondent's belief, based on the GP report of 14 December 2015 and occupational health reports in 2016, that the absences were likely to continue and possibly worsen. It accepted that the respondent consulted the claimant, met her in November 2016 and January 2017, considered possible adjustments and discussed ill-health retirement, and it held that the dismissal was within the range of reasonable responses under section 98(4) ERA 1996.

The tribunal also dismissed direct disability discrimination under section 13 Equality Act 2010. It accepted a hypothetical comparator with the same attendance record but not disabled, and held that the claimant had not been treated less favourably than that comparator. The tribunal found that a non-disabled employee with the same absence profile would likely have been dismissed sooner, and that the respondent had been sympathetic to the claimant's disability and had tolerated substantial disruption for a significant period.

The discrimination arising from disability claim under section 15 Equality Act 2010 was rejected because, although the dismissal was because of absence arising from disability, the tribunal held that the respondent was pursuing the legitimate aims of an efficient business, good client service and not overloading colleagues who covered the claimant's work. It accepted that the claimant's absence levels, their unpredictability and the medical evidence about likely future absence made continuing employment increasingly difficult to manage, and it concluded that dismissal was a proportionate means of achieving those aims.

The reasonable adjustments claim under section 20 Equality Act 2010 also failed. The tribunal identified the relevant PCP as the requirement that the claimant be able to undertake her role on a consistent basis in the foreseeable future, and found that she was at a substantial disadvantage because her attendance could not be relied on. It rejected each proposed adjustment, including discounting absences linked to the line, delaying dismissal for further medical evidence or for a period to see whether attendance improved, using the annualised-hours system to make up absences, following the sickness absence procedure in a different way, and simply tolerating the level of absence for longer. The tribunal concluded that no further reasonable adjustment had been shown and dismissed all claims.