Mr Y Bakhsh For the v Respondent — 2018

The claimant worked as an occupational therapist from February 2000 until her dismissal on 10 May 2017. The tribunal accepted that she had ME/CFS throughout and that depression also became a disability, with respondent awareness by 29 June 2016. It found that in 2011 a stage 1 warning had been issued on the basis of a relaxed attendance trigger of no more than five sickness episodes in 12 months, and that this adjustment remained in place until at least April 2015.

The tribunal found that in spring 2015 management reverted to the stricter three-episode trigger under the sickness absence policy, notwithstanding evidence from the claimant and occupational health that her conditions made higher absence likely. It held that most of the claimant's absences were disability-related, either directly or indirectly, and that the claimant was subjected to unfavourable treatment because of something arising in consequence of disability when the relaxed trigger was not continued and the absence process was applied against her. It also held that the duty to make reasonable adjustments was engaged and that the respondent failed to make the adjustment that would have been reasonable, namely continuing the relaxed trigger, rather than relying on later measures alone.

Although the respondent introduced measures including reduced hours, home working, supervision, and reduced caseload, the tribunal found those steps did not cure the disadvantage created by the stricter trigger system, and that the respondent failed to undertake the tailored adjustment planning recommended by occupational health. It further found that the later stages of the sickness absence process, and the dismissal itself, were further detriments and continuing failures to make reasonable adjustments. The respondent's justification defence failed because the balancing exercise required by the Equality Act was not properly carried out.

The tribunal also found the dismissal unfair under section 98 of the Employment Rights Act 1996. On Polkey, it assessed the chance of dismissal in any event, absent discrimination and with a fair procedure, at 50% within four months of 10 May 2017. The breach of contract claim for notice pay was dismissed because the claimant had in fact been working a 30-hour week and her contract had been amended accordingly. No monetary remedy was determined in this liability judgment; the tribunal directed the parties to notify it whether a remedies hearing was required.