Glenn Parkes v The Secretary of State for Justice — 2021

The claimant was dismissed on capability grounds after a lengthy performance management process. The tribunal accepted that the respondent genuinely believed he was not performing satisfactorily and that capability was the principal reason for dismissal. It found, however, that the decision became unfair once occupational health reports diagnosed dyslexia and dyspraxia and recommended adjustments, including additional leeway, because the respondent proceeded to dismissal without sufficient further enquiry, discussion, or trial of those recommendations.

The tribunal found both procedural and substantive unfairness. The dismissing manager did not give evidence, had prepared an undisclosed critique of the occupational health recommendations, and did not adequately explain why the adjustments would not assist. The tribunal also found that the appeal did not cure the unfairness: the appeal officer was not initially provided with the key occupational health reports, relied on the undisclosed critique, did not interview the dismissing manager, and was significantly assisted by HR advice that the tribunal considered leaned towards upholding dismissal.

On disability, the tribunal found that the claimant's dyslexia and dyspraxia had more than trivial effects on day-to-day activities including reading, writing, memory, concentration, numeracy, organisation, and spatial awareness. It found the respondent had actual or constructive knowledge by the time of dismissal, based on the occupational health reports.

The tribunal found the claimant's performance failings in the final action plan were likely connected to difficulties arising from his disabilities, including processing information, written work, organisation, prioritisation, and time management. It accepted efficient running of the undertaking as a legitimate aim, but held dismissal was not proportionate, particularly because reasonable adjustments had not been tried and there was no pressing need to dismiss while the claimant was about to start adoption leave. No Polkey or contributory fault reduction was made.