Mrs Letica Mensah v St Mary’s Care Ltd — 2023

The claimant had worked for the respondent since 2000 and was absent after knee replacement surgery in August 2017. The tribunal accepted that by April and May 2019 she had been certified fit for amended duties and part-time day work, but found that the respondent delayed and complicated her return to work by requiring a DBS check and further reference, by not carrying out the requested risk assessment, and by not acting on the occupational health advice that she could return to amended duties. It also accepted her account of the key meetings on 23 April, 9 May and 13 November 2019, and found that the dismissal decision was not communicated until 16 July 2020, with an effective date of termination of 17 July 2020.

In the first claim, the tribunal upheld direct disability discrimination and discrimination arising from disability, and also upheld indirect disability discrimination and failure to make reasonable adjustments to the extent set out in the reasons. It found that the respondent's treatment of the claimant, including the handling of her return to work and grievance, was less favourable and that the respondent had not shown a proportionate or justified response. The harassment complaint in the first claim was not separately determined because the same allegations succeeded as direct discrimination. The tribunal also found that wages were due for the period from 29 April to 14 October 2019, with the monetary calculation left to a remedy hearing.

In the second claim, the tribunal again upheld direct disability discrimination and discrimination arising from disability, and found the dismissal unfair under section 98 of the Employment Rights Act 1996. It held that capability was the reason relied upon, but that the respondent did not carry out a reasonable investigation, did not properly consider the claimant's physical and mental impairments, and delayed issuing the dismissal decision until July 2020. The tribunal did not make a Polkey reduction because the evidence was insufficient to assess whether dismissal would have occurred fairly in any event. The second claim harassment complaint was partially well-founded, while indirect discrimination, failure to make reasonable adjustments, and victimisation were dismissed. The tribunal also found accrued holiday pay due, held that notice pay was owed for 12 weeks, and found a breach of the obligation to provide a compliant written statement of employment particulars; monetary quantification was left for a remedy hearing.