Mrs J Moment v Humankind Charity — 2021

Mrs J Moment had worked as a housing support worker for many years and suffered from depression and anxiety. She went off sick in January 2019, was sectioned in February 2019, and remained under community mental health and occupational health review during the rest of her employment. The tribunal accepted that her mental impairment amounted to a disability and found that her role was a pressured support role dealing with vulnerable service users, some with mental health and substance misuse issues.

On the unfair dismissal claim, the tribunal held that the respondent dismissed her for capability, which is a potentially fair reason under section 98(2) ERA 1996. It found that the respondent believed she was incapable of doing the job, had reasonable grounds for that belief, and had consulted her repeatedly, including monthly review meetings and two occupational health referrals. Occupational health considered that she might eventually be able to return on a phased basis with low-pressure, predictable duties, but by the dismissal meeting on 6 December 2019 there was still no clear indication when she could return to her normal role, or whether she could return at all.

The tribunal also found that the respondent followed a fair process overall. It took into account the service pressures on the project, the fact that the funded service was for three support workers, and the loss of relief cover at the end of December 2019. The tribunal accepted that no administrative role was available and that the respondent needed to maintain service delivery to service users. Although it said the capability hearing could have been better handled and was somewhat clumsy, it held that dismissal in December 2019 was fair in all the circumstances and within the range of reasonable responses.

On the disability discrimination claim, the tribunal found that the dismissal was unfavourable treatment arising from something in consequence of disability, namely sickness absence and inability to do the work. It accepted the respondent's legitimate aims of ensuring the service was appropriately staffed, delivering to service users, protecting staff, and maintaining regular attendance. Applying the proportionality approach referred to in Hardy and Hansons PLC v Lax and McCulloch v ICI, it held that the respondent's need to keep the service operating outweighed the discriminatory effect on the claimant in the circumstances. The reasonable adjustments complaint also failed: the tribunal said the suggested delay until January 2020 and a return on administrative duties would not have avoided the disadvantage because no such role existed and delaying the decision would not have changed the outcome.