Ms L Hall v AstraZeneca UK Limited — 2019

The claimant was dismissed on capability grounds after sickness absence reviews under the respondent's Attendance Management Policy. The respondent accepted that the claimant had a disability of depression and anxiety and knew of it. The tribunal recorded that the respondent had allowed two annual trigger days, relaxed the usual 3% absence trigger to 5.5% for disability-related absences, and implemented a phased return after Occupational Health advice. A claim of indirect discrimination based on the policy was not pursued.

The reasonable adjustments claim under sections 20 and 21 Equality Act 2010 failed. The tribunal found that the relevant PCP was a requirement to attend work in accordance with the Attendance Management Policy to avoid sanctions including dismissal, and accepted in principle that this could place the claimant at a substantial disadvantage. It rejected the proposed further adjustments of separate recording of disability-related absence, reinstating a four-stage process, and delaying dismissal or extending the final improvement notice. It found that separating or discounting disability-related absence would not have changed the first improvement letter, the final improvement letter, or the final review, and that the respondent's policy allowed management discretion to consider the reasons for absence.

The section 15 Equality Act 2010 claim also failed. The tribunal found that the immediate trigger for the final review was the claimant's non-disability-related absence after breaking a rib in February 2017. It accepted that disability-related absences formed part of the overall history considered by the dismissing and appeal managers, but was not satisfied that the effect of disability was significant or more than minor or trivial. If that conclusion was wrong, it found dismissal justified as a proportionate means of achieving the legitimate aim of ensuring satisfactory attendance levels, after many years of unsatisfactory attendance.

The unfair dismissal claim under section 98(4) Employment Rights Act 1996 was dismissed. The claimant conceded that capability was a potentially fair reason under section 98(2). The tribunal found that the respondent complied with its policy, involved the claimant in discussions, allowed trade union representation, gave appeal rights, and reasonably did not need further Occupational Health advice before dismissing for persistent intermittent absence. It found that the decision was not predetermined, that HR acted in an advisory capacity, and that dismissal fell within the band of reasonable responses. All claims were dismissed and no monetary remedy was awarded.