Mrs Ann Hamilton v The Commissioners of Her Majesty’s Revenue & Customs — 2021

Mrs Ann Hamilton had worked for HMRC since 1999 and had long-standing physical adjustments after spinal surgery. In 2018 HMRC introduced more telephony work into CIS Team 2. The tribunal found there were repeated communication breakdowns between the claimant, managers and Occupational Health, including missed meetings, delayed letters and grievance correspondence, but it did not accept that HMRC's errors were deliberate.

On unfair dismissal, the tribunal found the reason was capability: the claimant had been absent from 22 February 2018 and there was no prospect of an early return. HMRC sought Occupational Health advice, kept in touch, offered written or telephone engagement, and repeatedly offered a non-telephony processing role with support. Applying s.98(4) ERA 1996 and the band of reasonable responses, the tribunal held dismissal on 13 November 2018 was fair.

On disability, the tribunal held the claimant's physical impairment was already a disability, but her mental impairment did not amount to a disability until 5 September 2018, when the Occupational Health report was received by HMRC on 17 September. It rejected the case that HMRC knew or should have known earlier, finding the June report and fit notes did not give sufficient warning of a long-term impairment.

The s.15 claim failed because the letters, meetings and referral to a decision maker were treated as steps taken to manage attendance and return to work, not treatment because of something arising in consequence of disability. Even if they were unfavourable treatment, the tribunal held they were proportionate to the legitimate aim of maintaining attendance and reliable service.

The s.20/21 claim failed because the tribunal identified the attendance management procedure, keeping-in-touch expectations and the general requirement that the team should try telephony as the relevant PCPs, but held HMRC took all reasonable steps to reduce disadvantage. Those steps included keeping the existing physical adjustments, allowing written or telephone contact, extending time to engage, seeking Occupational Health input and offering a non-telephony role.

The harassment claim failed because the tribunal found the alleged 20 February remark was an over-sensitive misinterpretation rather than unwanted conduct related to disability, and the later warning letters were not objectively capable of creating a hostile environment. The victimisation claim also failed: although the grievance correspondence was enough to alert HMRC to a possible protected act, the tribunal was not satisfied that dismissal or any other detriment was because of that protected act. No tribunal monetary award was made because all claims were dismissed.