Mrs Lynda Walker v Modular Office & Storage Systems Limited — 2022

Mrs Lynda Walker brought unfair dismissal and disability discrimination claims against Modular Office & Storage Systems Limited after her dismissal on 11 February 2019 following a period of long-term sickness absence caused by hip and back pain. The tribunal heard that she had worked for the respondent since 2001, that an occupational health report dated 18 December 2018 said she could return to work with the right assistance, and that the respondent held an informal absence meeting on 23 January 2019 and a formal dismissal meeting on 11 February 2019. The appeal was dismissed on 22 February 2019.

Applying section 98(4) of the Employment Rights Act 1996 and the authorities on capability dismissals, the tribunal held that the respondent had not shown it could not reasonably wait any longer for the claimant to return. It found that the respondent did not adequately investigate the medical position, did not obtain clarification from the claimant's consultant, did not properly consider agency or temporary cover for routine administrative duties, and did not give sufficient weight to the claimant's 12 weeks' notice entitlement. It also accepted that the claimant later received the nerve block injection recommended by her consultant and was fit for work within days, which the tribunal treated as supporting the view that a return within the foreseeable future was realistic. The dismissal was therefore found to be substantively and procedurally unfair, and no Polkey reduction was made.

On the disability discrimination claims, the tribunal found that the respondent knew or ought reasonably to have known that the claimant was disabled by the date of the occupational health report on 18 December 2018, and in any event by the January and February 2019 meetings. It held that dismissal for long-term absence was unfavourable treatment because of something arising in consequence of disability, and that the respondent had not shown that dismissal was a proportionate means of achieving a legitimate aim. The tribunal also found a failure to make reasonable adjustments because the claimant was required to work in the office using the desk and chair provided, which exacerbated her pain and discomfort; it found that a more suitable chair and desk would likely have helped, but it was not persuaded that working from home would have enabled her to perform the job properly.

The remedy was calculated as a basic award of £7,479 and a compensatory award of £7,078.34 for unfair dismissal, including loss of statutory rights, loss of earnings and loss of motor vehicle use. For the disability discrimination claims, the tribunal awarded £8,000 for injury to feelings, assessed in the lower Vento band. The total sum ordered was £22,557.34.