Mr M Robertson v British Telecommunications plc — 2019

The claimant was dismissed for absence after a period of ill health. The tribunal found that the respondent acted unreasonably in treating the absence as a sufficient reason for dismissal. It found that the claimant had indicated he could return to work in the near future, that no up-to-date occupational health advice had been obtained, that the respondent had not followed its own absence procedure, and that the claimant had not been given the opportunity to demonstrate a return to work.

For disability, the tribunal found that the claimant was disabled by reason of his neck and shoulder injury, but not by reason of IBS or anxiety and depression at the relevant time. The s.15 claim about attendance meetings failed because discussing absence was not unfavourable treatment. The s.15 claim about dismissal succeeded because the dismissal was unfavourable treatment arising from disability-related absence and the tribunal did not accept that dismissal was a proportionate means of achieving the assumed legitimate aim of regular attendance.

The tribunal dismissed the reasonable adjustments allegation concerning more time before attendance meetings, but upheld the allegations concerning dismissal and office attendance. It found that allowing the claimant a further short period to recover and return to work before dismissal would have been a reasonable adjustment, and that allowing some form of home working would have avoided the disadvantage caused by the requirement to attend the office every day. The tribunal made a recommendation that the respondent review its sickness absence policy.